Registration Statements. (a) As promptly as reasonably practicable, but in any event no later than January 25, 2019, (i) the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and Parent shall file with the SEC, an amendment to Parent’s registration statement on Form S-4 (333-227444) to register under the 1933 Act the Parent Share Issuance (together with all supplements, amendments, prospectuses and/or information statements, the “Parent Registration Statement”) and (ii) subject to the last sentence of this Section 8.02(a), the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and SpinCo shall file with the SEC a registration statement on Form S-1 to register under the 1933 Act, the SpinCo Common Stock to be distributed in the Distribution (together with all supplements, amendments, prospectuses and/or information statements, the “SpinCo Registration Statement” and, together with the Parent Registration Statement, the “Registration Statements”). Each of the Company, SpinCo, Parent and Merger Sub shall use its reasonable best efforts to have the Registration Statements filed with the SEC become effective under the 1933 Act on or before February 14, 2019. Each of Parent and SpinCo and the Company shall also take any action required to be taken under any applicable state securities laws in connection with, in the case of Parent, the Parent Share Issuance and, in the case of the Company, the issuance and distribution of the SpinCo Common Stock in the Distribution. The parties hereto shall cooperate in preparing and filing with the SEC the Registration Statements and any necessary amendments or supplements thereto. Parent and Merger Sub shall furnish all information concerning Parent and its Subsidiaries, and the Company and SpinCo shall furnish all information concerning the Company, SpinCo, the Tiger Business and the Transferred Subsidiaries, as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution of the Registration Statements or the prospectus contained therein, as applicable, and any necessary amendments or supplements thereto. None of the Registration Statements or prospectus contained therein, as applicable, or any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), except as required by Applicable Law. Following the date hereof, if doing so would not delay the consummation of the transactions contemplated hereby (except for any delay that would not, in the aggregate, result in a delay of Closing by more than three Business Days), the Company may elect for SpinCo to file with the SEC a registration statement on Form 10 in lieu of the registration statement on Form S-1 described above (and if the Company makes such an election, the term “SpinCo Registration Statement” shall refer to such Form 10 (and not the SpinCo Form S-1) for all purposes hereunder). (b) Parent and the Company, as applicable, shall advise the other promptly after receiving oral or written notice of (i) the time when a Registration Statement has become effective or any supplement or amendment to a Registration Statement has been filed, (ii) the issuance of any stop order, (iii) the suspension of the qualification for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distribution, or (iv) any oral or written request by the SEC for amendment of a Registration Statement or SEC comments thereon or requests by the SEC for additional information. Parent and the Company shall promptly provide each other with copies of any written communication from the SEC and convey to each other summaries of any oral communications with the SEC, in each case, with respect to the Registration Statements and shall cooperate to prepare appropriate responses thereto (and will provide each other with copies of any such responses given to the SEC) and make such modifications to the Registration Statements as shall be reasonably appropriate. (c) If, at any time prior to the Effective Time, any event or circumstance shall be discovered by a party hereto that should be set forth in an amendment or a supplement to a Registration Statement so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such party shall promptly inform the other parties hereto and the parties hereto shall cause an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to stockholders. (d) In connection with the filing of the Registration Statements and other SEC filings contemplated hereby, each of the Company and Parent shall use its reasonable best efforts to (i) cooperate with the other to prepare pro forma financial statements that comply with the rules and regulations of the SEC to the extent required for such filings, including the requirements of Regulation S-X and (ii) provide and make reasonably available upon reasonable notice the senior management employees of the Company or Parent, as the case may be, to discuss the materials prepared and delivered pursuant to this Section 8.02(d).” 19. Section 8.07. Section 8.07 of the Merger Agreement is hereby amended and restated in its entirely to read as follows: (a) Immediately prior to the Closing, the Company shall, or shall cause SpinCo to, deliver to Parent (i) a certificate from SpinCo, dated as of the Closing Date and prepared in accordance with Treasury Regulations sections 1.897-2(h) and 1.1445-2(c)(3), stating that equity interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations section 1.897-2(h) (which notice shall be mailed to the IRS by SpinCo following the Closing in accordance with Treasury Regulations section 1.897-2(h)), in case of clause (i) and (ii), in form and substance reasonably acceptable to Parent. (b) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement.”
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Westinghouse Air Brake Technologies Corp), Amendment to Agreement and Plan of Merger (Westinghouse Air Brake Technologies Corp), Amendment to Agreement and Plan of Merger (Transportation Systems Holdings Inc.)
Registration Statements. (a) As promptly as reasonably practicable, but in any event no later than January 25, 2019, (i) the Company, SpinCo, Each of Parent and Merger Sub the Company shall jointly cooperate and promptly prepare, and Parent shall file with the SEC, an amendment to Parent’s as soon as practicable, a registration statement on Form S-4 (333-227444the “Form S-4”) to register under the 1933 Act Securities Act, with respect to the Parent Share Issuance ADSs (together and Class A Ordinary Shares represented thereby) deliverable in connection with all supplementsthe Merger, amendments, prospectuses and/or information statements, a portion of which Registration Statement shall also serve as the joint proxy statement with respect to the meetings of the shareholders of Parent and of the Company in connection with the transactions contemplated by this Agreement (the “Parent Registration Proxy Statement/Prospectus”) and (ii) subject to ). To the last sentence of this Section 8.02(a), the Company, SpinCoextent necessary, Parent shall cause the ADS Depositary to prepare and Merger Sub shall jointly prepare, and SpinCo shall file with the SEC SEC, no later than the date prescribed by the rules and regulations under the Securities Act, a registration statement statement, or a post-effective amendment thereto, as applicable, on Form S-1 F-6 (the “Form F-6”) with respect to register under the 1933 Parent ADSs deliverable in connection with the Merger. The respective parties will cause the Proxy Statement/Prospectus, the Form S-4 and the Form F-6 to comply as to form in all material respects with the applicable provisions of the Securities Act, the SpinCo Common Stock to be distributed in Exchange Act and the Distribution (together with all supplements, amendments, prospectuses and/or information statements, the “SpinCo Registration Statement” and, together with the Parent Registration Statement, the “Registration Statements”)rules and regulations thereunder. Each of the Company, SpinCo, Parent and Merger Sub the Company shall use its reasonable best efforts to have the Registration Statements filed with Form S-4 and the Form F-6 declared effective by the SEC become effective under the 1933 Act on or before February 14, 2019as promptly as practicable. Each of Parent and SpinCo and the Company shall also take any action use its reasonable best efforts to obtain, prior to the effective date of the Form S-4, all necessary non-U.S., state securities law or “Blue Sky” permits or approvals required to be taken under any applicable state securities laws in connection with, in the case of Parent, the Parent Share Issuance and, in the case of the Company, the issuance and distribution of the SpinCo Common Stock in the Distribution. The parties hereto shall cooperate in preparing and filing with the SEC the Registration Statements and any necessary amendments or supplements thereto. Parent and Merger Sub shall furnish all information concerning Parent and its Subsidiaries, and the Company and SpinCo shall furnish all information concerning the Company, SpinCo, the Tiger Business and the Transferred Subsidiaries, as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution of the Registration Statements or the prospectus contained therein, as applicable, and any necessary amendments or supplements thereto. None of the Registration Statements or prospectus contained therein, as applicable, or any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), except as required by Applicable Law. Following the date hereof, if doing so would not delay the consummation of carry out the transactions contemplated hereby (except for any delay that would not, in the aggregate, result in a delay of Closing by more than three Business Days), the Company may elect for SpinCo to file with the SEC a registration statement on Form 10 in lieu of the registration statement on Form S-1 described above (and if the Company makes such an election, the term “SpinCo Registration Statement” shall refer to such Form 10 (and not the SpinCo Form S-1) for all purposes hereunder).
(b) Parent and the Company, as applicable, shall this Agreement. Each party will advise the other others, promptly after receiving oral or written it receives notice thereof, of (i) the time when a Registration Statement has the Form S-4 and the Form F-6 have become effective or any supplement or amendment to a Registration Statement has been filed, (ii) the issuance of any stop order, (iii) the suspension of the qualification of the Parent ADSs (or the Class A Ordinary Shares represented thereby) deliverable in connection with the Merger for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distribution, or (iv) any oral or written request by the SEC for amendment of a Registration Statement the Proxy Statement/Prospectus, the Form S-4 or SEC the Form F-6 or comments thereon and responses thereto or requests by the SEC for additional information. Each of the parties shall also promptly provide each other party copies of all written correspondence received from the SEC and summaries of all oral comments received from the SEC in connection with the transactions contemplated by this Agreement. Each of the parties shall promptly provide each other party with drafts of all correspondence intended to be sent to the SEC in connection with the transactions contemplated by this Agreement and allow each such party the opportunity to comment thereon prior to delivery to the SEC.
(b) Parent and the Company shall each use its reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to its shareholders as promptly provide each other with copies of any written communication from as practicable after the SEC and convey to each other summaries of any oral communications with Form S-4 is declared effective under the SEC, in each case, with respect to the Registration Statements and shall cooperate to prepare appropriate responses thereto (and will provide each other with copies of any such responses given to the SEC) and make such modifications to the Registration Statements as shall be reasonably appropriateSecurities Act.
(c) IfEach of Parent and the Company shall ensure that the information provided by it for inclusion in the Proxy Statement/Prospectus and each amendment or supplement thereto, at the time of mailing thereof and at the time of the respective meetings of shareholders of Parent and the Company, or, in the case of information provided by it for inclusion in the Form S-4 or any time prior to the Effective Time, any event or circumstance shall be discovered by a party hereto that should be set forth in an amendment or a supplement to a Registration Statement so that any such document would thereto, at the time it becomes effective, will not include any misstatement an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such party shall promptly inform the other parties hereto and the parties hereto shall cause an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to stockholders.
(di) In the event that Parent determines in its reasonable discretion that it is necessary or advisable to deliver a prospectus to residents of the United Kingdom pursuant to the UK prospectus rules made by the UK Listing Authority (“UKLA”) under Part VI of UK FSMA (such rules the “UK Prospectus Rules”), as promptly as practicable thereafter, but in no event later than the initial filing of the Form S-4, Parent shall prepare and file with the UKLA for its approval a draft copy of such prospectus (the “Parent UK Prospectus”), and Parent shall cause the Parent UK Prospectus to comply as to form and substance in all material respects with the requirements of all applicable laws. The Company shall prepare and furnish all information concerning itself as Parent may reasonably request in connection with the filing preparation of the Registration Statements Parent UK Prospectus, including, without limitation, by supplying all such information, procuring such financial statements and other SEC filings contemplated herebyaudit reports thereon in accordance with the UK Prospectus Rules, giving all such undertakings, executing all such documents, paying all such fees and doing or procuring to be done all such things as may be necessary or required by the UKLA or otherwise for the purposes of complying with the UK Prospectus Rules and obtaining the approval of the UKLA. To the extent that Parent determines to proceed with such a prospectus, Parent shall use reasonable best efforts to obtain formal approval of the Parent UK Prospectus by the UKLA concurrently with the effectiveness of the registration statement on Form S-4, including, without limitation, by supplying all such information, procuring such financial statements and audit reports thereon in accordance with the UK Prospectus Rules, giving all such undertakings, executing all such documents and doing or procuring to be done all such things as may be necessary or required by the UKLA or otherwise for the purposes of complying with the UK Prospectus Rules and obtaining the approval of the UKLA. As promptly as practicable after the Parent UK Prospectus is approved by the UKLA and, in any event, no later than the time that the Proxy Statement/Prospectus is provided to its stockholders, the Company shall cause the Parent UK Prospectus to be mailed or delivered or otherwise made available to the record and beneficial stockholders of the Company resident in the United Kingdom, and Parent shall publish it in accordance with applicable law.
(ii) The Company and its counsel shall be given a reasonable opportunity to review and comment on any such Parent UK Prospectus and any amendments or supplements thereto (in each case prior to the publication thereof) and Parent will in good faith take into account any reasonable comments made by, or reasonable requests of, the Company and its counsel. Parent shall promptly advise the Company upon becoming aware of (i) the time when the Parent UK Prospectus has been approved by the UKLA or any supplementary prospectus has been filed or (ii) any comments, responses or requests from the UKLA relating to the Parent UK Prospectus.
(iii) The information supplied by the Company for inclusion in any such Parent UK Prospectus and any announcement to any regulatory information service in connection with the Parent UK Prospectus shall not at the time the Parent UK Prospectus is first mailed to stockholders of the Company and is first published and at the time of the meeting of the stockholders of the Company, and in the case of any such announcement at the time it is provided by the Company to the Parent, contain any statement, promise or forecast which is misleading, false or deceptive in a material particular, conceal any material facts or create a false or misleading impression. For the purposes of Parent shall use its reasonable best efforts to (i) cooperate complying with the other to prepare pro forma financial statements that comply with UK Prospectus Rules, the rules and regulations Company shall promptly advise Parent upon becoming aware of the SEC any significant new factor, material mistake or inaccuracy relating to the extent required for such filings, including information concerning the requirements of Regulation S-X and (ii) provide and make reasonably available upon reasonable notice Company which should be disclosed to enable the senior management employees stockholders of the Company or Parent, as the case may be, to discuss the materials prepared and delivered pursuant to this Section 8.02(d).”
19. Section 8.07. Section 8.07 make an informed assessment of the Merger Agreement is hereby amended assets and restated in its entirely to read as follows:
(a) Immediately prior to the Closingliabilities, the Company shallfinancial position, or shall cause SpinCo toprofits and losses, deliver to and prospects of Parent (i) a certificate from SpinCo, dated as of the Closing Date and prepared in accordance with Treasury Regulations sections 1.897-2(h) and 1.1445-2(c)(3), stating that equity interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations section 1.897-2(h) (which notice shall be mailed to the IRS by SpinCo following the Closing in accordance with Treasury Regulations section 1.897-2(h)), in case of clause (i) and (ii), in form and substance reasonably acceptable to ParentMerger.
(b) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement.”
Appears in 2 contracts
Sources: Merger Agreement (Ensco PLC), Merger Agreement (Pride International Inc)
Registration Statements. (a) As promptly as reasonably practicable, but in any event no later than January 25, 2019, (i) the Company, SpinCo, Each of Parent and Merger Sub the Company shall jointly cooperate and promptly prepare, and Parent shall file with the SEC, an amendment to Parent’s as soon as practicable, a registration statement on Form S-4 (333-227444the “Form S-4”) to register under the 1933 Act Securities Act, with respect to the Parent Share Issuance Shares deliverable in connection with the Merger, a portion of such Form S-4 shall also serve as the proxy statement with respect to the Company Unitholder Meeting (together with all supplements, amendments, prospectuses and/or information statements, the “Parent Registration Proxy Statement/Prospectus”) ). The respective parties will cause the Proxy Statement/Prospectus and (ii) subject the Form S-4 to the last sentence of this Section 8.02(a), the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and SpinCo shall file comply as to form in all material respects with the SEC a registration statement on Form S-1 to register under applicable provisions of the 1933 Securities Act, the SpinCo Common Stock to be distributed in Exchange Act and the Distribution (together with all supplements, amendments, prospectuses and/or information statements, the “SpinCo Registration Statement” and, together with the Parent Registration Statement, the “Registration Statements”)rules and regulations thereunder. Each of the Company, SpinCo, Parent and Merger Sub the Company shall use its reasonable best efforts to respond to comments from the SEC and to have the Registration Statements filed with Form S-4 declared effective by the SEC become effective under the 1933 Act on or before February 14, 2019as promptly as practicable. Each of Parent and SpinCo and the Company shall also take any action use its reasonable best efforts to obtain, prior to the effective date of the Form S-4, all necessary non-U.S., state securities law or “Blue Sky” permits or approvals required to be taken under any applicable state securities laws in connection with, in the case of Parent, the Parent Share Issuance and, in the case of the Company, the issuance and distribution of the SpinCo Common Stock in the Distribution. The parties hereto shall cooperate in preparing and filing with the SEC the Registration Statements and any necessary amendments or supplements thereto. Parent and Merger Sub shall furnish all information concerning Parent and its Subsidiaries, and the Company and SpinCo shall furnish all information concerning the Company, SpinCo, the Tiger Business and the Transferred Subsidiaries, as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution of the Registration Statements or the prospectus contained therein, as applicable, and any necessary amendments or supplements thereto. None of the Registration Statements or prospectus contained therein, as applicable, or any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), except as required by Applicable Law. Following the date hereof, if doing so would not delay the consummation of carry out the transactions contemplated hereby (except for any delay that would not, in the aggregate, result in a delay of Closing by more than three Business Days), the Company may elect for SpinCo to file with the SEC a registration statement on Form 10 in lieu of the registration statement on Form S-1 described above (and if the Company makes such an election, the term “SpinCo Registration Statement” shall refer to such Form 10 (and not the SpinCo Form S-1) for all purposes hereunder).
(b) Parent and the Company, as applicable, shall this Agreement. Each party will advise the other others, promptly after receiving oral or written it receives notice thereof, of (i) the time when a Registration Statement the Form S-4 has become effective or any supplement or amendment to a Registration Statement has been filed, (ii) the issuance of any stop order, (iii) the suspension of the qualification of the Parent Shares deliverable in connection with the Merger for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distribution, or (iv) any oral or written request by the SEC for amendment of a Registration Statement the Proxy Statement/Prospectus, the Form S-4 or SEC comments thereon and responses thereto or requests by the SEC for additional information. Each of the parties shall also promptly provide each other party copies of all written correspondence received from the SEC and summaries of all oral comments received from the SEC in connection with the transactions contemplated by this Agreement. Each of the parties shall promptly provide each other party with drafts of all correspondence intended to be sent to the SEC in connection with the transactions contemplated by this Agreement and allow each such party the opportunity to comment thereon prior to delivery to the SEC.
(b) The Company shall use its reasonable best efforts to cause the Proxy Statement/Prospectus to be distributed to its Members holding Outstanding Company Common Units as promptly as practicable after the Form S-4 is declared effective under the Securities Act.
(c) Each of Parent and the Company shall promptly provide ensure that the information provided by it for inclusion in the Proxy Statement/Prospectus and each other with copies amendment or supplement thereto, at the time of any written communication from distribution thereof and at the SEC and convey to each other summaries time of any oral communications with the SECCompany Unitholder Meeting, or, in each case, with respect to the Registration Statements and shall cooperate to prepare appropriate responses thereto (and will provide each other with copies case of information provided by it for inclusion in the Form S-4 or any such responses given to the SEC) and make such modifications to the Registration Statements as shall be reasonably appropriate.
(c) Ifamendment or supplement thereto, at any the time prior to the Effective Timeit becomes effective, any event or circumstance shall be discovered by a party hereto that should be set forth in an amendment or a supplement to a Registration Statement so that any such document would will not include any misstatement an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such party shall promptly inform the other parties hereto and the parties hereto shall cause an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to stockholders.
(d) In connection with the filing of the Registration Statements and other SEC filings contemplated hereby, each of the Company and Parent shall use its reasonable best efforts to (i) cooperate with the other to prepare pro forma financial statements that comply with the rules and regulations of the SEC to the extent required for such filings, including the requirements of Regulation S-X and (ii) provide and make reasonably available upon reasonable notice the senior management employees of the Company or Parent, as the case may be, to discuss the materials prepared and delivered pursuant to this Section 8.02(d).”
19. Section 8.07. Section 8.07 of the Merger Agreement is hereby amended and restated in its entirely to read as follows:
(a) Immediately prior to the Closing, the Company shall, or shall cause SpinCo to, deliver to Parent (i) a certificate from SpinCo, dated as of the Closing Date and prepared in accordance with Treasury Regulations sections 1.897-2(h) and 1.1445-2(c)(3), stating that equity interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations section 1.897-2(h) (which notice shall be mailed to the IRS by SpinCo following the Closing in accordance with Treasury Regulations section 1.897-2(h)), in case of clause (i) and (ii), in form and substance reasonably acceptable to Parent.
(b) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement.”
Appears in 2 contracts
Sources: Merger Agreement (Transocean Ltd.), Agreement and Plan of Merger (Transocean Partners LLC)
Registration Statements. (a) As promptly as reasonably practicable, but in any event no later than January 25, 2019, (i) the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and Parent shall file The Company has filed with the SEC, an amendment to Parent’s registration statement on Form S-4 (333-227444) to register under Commission the 1933 Act the Parent Share Issuance (together with all supplements, amendments, prospectuses and/or information statements, the “Parent Registration Statement”) and (ii) subject to the last sentence of this Section 8.02(a), the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and SpinCo shall file with the SEC a registration statement on Form S-1 to register under the 1933 Act, the SpinCo Common Stock to be distributed in the Distribution (together with all supplements, amendments, prospectuses and/or information statements, the “SpinCo Registration Statement” and, together with the Parent Registration Statement, including any related Preliminary Prospectus or Prospectus, for the “Registration Statements”). Each registration of the Company, SpinCo, Parent and Merger Sub shall use its reasonable best efforts to have the Registration Statements filed with the SEC become effective Securities under the 1933 Act on or before February 14Securities Act, 2019. Each of Parent and SpinCo and the Company shall also take any action required to be taken under any applicable state securities laws in connection with, in the case of Parent, the Parent Share Issuance and, in the case of the Company, the issuance and distribution of the SpinCo Common Stock in the Distribution. The parties hereto shall cooperate in preparing and filing with the SEC the Registration Statements and any necessary amendments or supplements thereto. Parent and Merger Sub shall furnish all information concerning Parent and its Subsidiaries, and the Company and SpinCo shall furnish all information concerning the Company, SpinCo, the Tiger Business and the Transferred Subsidiaries, as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution of the Registration Statements or the prospectus contained therein, as applicable, and any necessary amendments or supplements thereto. None of the Registration Statements or prospectus contained therein, as applicable, or any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), except as required by Applicable Law. Following the date hereof, if doing so would not delay the consummation of the transactions contemplated hereby (except for any delay that would not, in the aggregate, result in a delay of Closing by more than three Business Days), the Company may elect for SpinCo to file with the SEC a registration statement on Form 10 in lieu of the registration statement on Form S-1 described above (and if the Company makes such an election, the term “SpinCo Registration Statement” shall refer to such Form 10 (and not the SpinCo Form S-1) for all purposes hereunder).
(b) Parent and the Company, as applicable, shall advise the other promptly after receiving oral or written notice of (i) the time when a Registration Statement has become effective or any supplement or amendment to a which Registration Statement has been filed, (ii) prepared by the issuance of any stop order, (iii) Company in all material respects in conformity with the suspension requirements of the qualification for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distribution, or (iv) any oral or written request by the SEC for amendment of a Registration Statement or SEC comments thereon or requests by the SEC for additional information. Parent Securities Act and the Company shall promptly provide each other with copies of any written communication from the SEC and convey to each other summaries of any oral communications with the SEC, in each case, with respect to the Registration Statements and shall cooperate to prepare appropriate responses thereto (and will provide each other with copies of any such responses given to the SEC) and make such modifications to the Registration Statements as shall be reasonably appropriate.
(c) If, at any time prior to the Effective Time, any event or circumstance shall be discovered by a party hereto that should be set forth in an amendment or a supplement to a Registration Statement so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such party shall promptly inform the other parties hereto and the parties hereto shall cause an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to stockholders.
(d) In connection with the filing of the Registration Statements and other SEC filings contemplated hereby, each of the Company and Parent shall use its reasonable best efforts to (i) cooperate with the other to prepare pro forma financial statements that comply with the rules and regulations of the SEC Commission under the Securities Act. The Registration Statement has been declared effective by the Commission on January [●], 2022 (the “Effective Date”). The Company has filed with the Commission a Form 8-A (File No. [●]) providing for the registration under the Exchange Act of the Common Stock and the Warrants and the registration under the Exchange Act of the Common Stock and Warrants has been declared effective by the Commission on the date hereof. The Company has advised the Representative of all further information (financial and other) with respect to the extent Company required for such filingsto be set forth therein in the Registration Statement, including any Preliminary Prospectus, the requirements Pricing Prospectus and the Prospectus. Any reference in this Agreement to the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or any Prospectus Supplement shall be deemed to refer to and include the filing of Regulation S-X and (ii) provide and make reasonably available upon reasonable notice any document under the senior management employees Exchange Act after the date of this Agreement, or the Company issue date of any Preliminary Prospectus, the Pricing Prospectus, the Prospectus or Parentany Prospectus Supplement, as the case may be, deemed to discuss be incorporated therein by reference. All references in this Agreement to financial statements and schedules and other information which is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the materials prepared and delivered pursuant to this Section 8.02(d).”
19. Section 8.07. Section 8.07 of the Merger Agreement is hereby amended and restated in its entirely to read as follows:
(a) Immediately prior to the ClosingRegistration Statement, any Preliminary Prospectus, the Company shallPricing Prospectus, the Prospectus or shall cause SpinCo to, deliver to Parent any Prospectus Supplement (iand all other references of like import) a certificate from SpinCo, dated as of the Closing Date and prepared in accordance with Treasury Regulations sections 1.897-2(h) and 1.1445-2(c)(3), stating that equity interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations section 1.897-2(h) (which notice shall be mailed deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the IRS by SpinCo following Registration Statement, any Preliminary Prospectus, the Closing in accordance with Treasury Regulations section 1.897Pricing Prospectus, the Prospectus or any Prospectus Supplement, as the 121213169v4 -10- DM_US 187203303-2(h)), in case of clause (i) and (ii), in form and substance reasonably acceptable to Parent.
(b) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement.”1.T25901.0010
Appears in 1 contract
Sources: Underwriting Agreement (Ascent Solar Technologies, Inc.)
Registration Statements. (a) As promptly as reasonably practicablepracticable after the execution of this Agreement, but in any event no later than January 25, 2019, Autoliv and ▇▇▇▇▇▇ shall jointly prepare and file (or cause Newco to file) with the SEC a single document that will constitute (i) the Companyproxy statement of ▇▇▇▇▇▇ relating to the special meeting of ▇▇▇▇▇▇'▇ stockholders (the "▇▇▇▇▇▇ Stockholders' Meeting") to be held to consider approval of this Agreement, SpinCo, Parent and Merger Sub shall jointly preparethe Merger, and Parent shall file with the SECtransactions contemplated by the Distribution Agreement, an amendment to Parent’s registration statement on Form S-4 (333-227444) to register under the 1933 Act the Parent Share Issuance (together with all supplements, amendments, prospectuses and/or information statements, the “Parent Registration Statement”) and (ii) subject to the last sentence of this Section 8.02(a), the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and SpinCo shall file with the SEC a registration statement on Form S-1 to register under the 1933 Act, the SpinCo Common Stock to be distributed in the Distribution (together with all supplements, amendments, prospectuses and/or information statements, the “SpinCo Registration Statement” and, together with the Parent Registration Statement, the “Registration Statements”). Each of the Company, SpinCo, Parent and Merger Sub shall use its reasonable best efforts to have the Registration Statements filed with the SEC become effective under the 1933 Act on or before February 14, 2019. Each of Parent and SpinCo and the Company shall also take any action required to be taken under any applicable state securities laws in connection with, in the case of Parent, the Parent Share Issuance and, in the case of the Company, the issuance and distribution of the SpinCo Common Stock in the Distribution. The parties hereto shall cooperate in preparing and filing with the SEC the Registration Statements and any necessary amendments or supplements thereto. Parent and Merger Sub shall furnish all information concerning Parent and its Subsidiaries, and the Company and SpinCo shall furnish all information concerning the Company, SpinCo, the Tiger Business and the Transferred Subsidiaries, as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution of the Registration Statements or the prospectus contained therein, as applicable, and any necessary amendments or supplements thereto. None of the Registration Statements or prospectus contained therein, as applicable, or any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), except as required by Applicable Law. Following the date hereof, if doing so would not delay the consummation of the transactions contemplated hereby (except for any delay that would not, in the aggregate, result in a delay of Closing by more than three Business Days), the Company may elect for SpinCo to file with the SEC a registration statement on Form 10 in lieu forming part of the registration statement on Form S-1 described above S-4 of Spinco (and if the Company makes such an electiontogether with all amendments thereto, the term “SpinCo "Spinco Registration Statement” shall refer "), in connection with the registration under the Securities Act of the Spinco Common Stock to such be issued to ▇▇▇▇▇▇ stockholders pursuant to the Spinoff, (iii) the prospectus forming part of the registration statement on Form 10 S-4 of Newco (together with all amendments thereto, the "Newco Registration Statement" and, collectively with the Spinco Registration Statement, the "Registration Statements"), in connection with the registration under the Securities Act of the Newco Common Stock to be issued to the stockholders of Autoliv and not ▇▇▇▇▇▇ pursuant to the SpinCo Form S-1) for all purposes hereunder).
(b) Parent Exchange Offer in the United States and the CompanyMerger, respectively, and (iv) the offer to purchase (the "U.S. Offer to Purchase") to be used by Newco in connection with the Exchange Offer in the United States (such document, together with any amendments thereof or supplements thereto, the "Proxy/Prospectus"). Autoliv, ▇▇▇▇▇▇ and Newco each shall use reasonable efforts to cause the Registration Statements to become effective as promptly as practicable, and, prior to the effective date of the Registration Statements (the "Registration Statement Effective Date"), Newco shall take all or any action required under any applicable Laws in connection with the issuance of Newco Common Stock and, if applicable, SDRs pursuant to the Merger and the Exchange Offer. Autoliv or ▇▇▇▇▇▇, as applicablethe case may be, shall advise furnish all information concerning Autoliv or ▇▇▇▇▇▇ as the other party may reasonably request in connection with such actions and the preparation of the Registration Statements, the Swedish Prospectus and the International Prospectus. As promptly as practicable after receiving oral or written notice the Registration Statement Effective Date, the Proxy/Prospectus will be mailed to the stockholders of ▇▇▇▇▇▇ and the U.S. and Canadian stockholders of Autoliv and provided to the NYSE and SSE. In addition, as promptly as practicable after the Registration Statement Effective Date, Newco will mail the Swedish Prospectus to Autoliv stockholders located in Sweden and the International Prospectus to Autoliv stockholders located outside of the United States, Canada and Sweden. Autoliv, ▇▇▇▇▇▇ and Newco shall cause the Newco Registration Statement, the Swedish Prospectus and the International Prospectus to comply as to form and substance in all material respects with the applicable requirements of (i) the Exchange Act, including, without limitation, Section 14(e) thereof and the respective regulations promulgated thereunder, (ii) the NYSE and the SSE or the FSA, (iii) the Securities Act, (iv) the NBK ("N_ringslivets Borskommittes") Recommendations Concerning Public Offers for the Acquisition of Shares (1988) and (v) the Indiana Law.
(i) The Proxy/Prospectus shall include the unanimous recommendation of the Board of Directors of ▇▇▇▇▇▇ to the stockholders of ▇▇▇▇▇▇ that they vote in favor of approval of this Agreement and the Distribution Agreement; provided, however, that if a Competing Transaction (as defined in Section 8.4 (d)) shall have been made for ▇▇▇▇▇▇, the Board of Directors of ▇▇▇▇▇▇ may, at any time prior to the Effective Time, withdraw, modify or change any such recommendation if the Board of Directors of ▇▇▇▇▇▇ determines in good faith that failure to so withdraw, modify or change its recommendation would cause the Board of Directors of ▇▇▇▇▇▇ to breach its fiduciary duties to ▇▇▇▇▇▇'▇ stockholders under applicable Laws after consultation with independent legal counsel (who may be ▇▇▇▇▇▇'▇ regularly engaged independent legal counsel). In addition, the Proxy/Prospectus will include the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ referred to in Section 4.17.
(ii) The Proxy/Prospectus, the Swedish Prospectus and the International Prospectus shall include the unanimous recommendation of the Board of Directors of Autoliv to the stockholders of Autoliv that they accept the Exchange Offer; provided, however, that if a Competing Transaction shall have been made for Autoliv, the Board of Directors of Autoliv may, at any time prior to the Effective Time, withdraw, modify or change any such recommendation if the Board of Directors of Autoliv determines in good faith that failure to so withdraw, modify or change its recommendation would cause the Board of Directors of Autoliv to breach its fiduciary duties to Autoliv or Autoliv's stockholders under applicable Laws after consultation with independent legal counsel (who may be Autoliv's regularly engaged independent legal counsel). In addition, the Proxy/Prospectus, the Swedish Prospectus and the International Prospectus will include the opinions of Enskilda and Blackstone referred to in Section 5.15.
(c) No amendment or supplement to the Registration Statements will be made without the approval of Autoliv and ▇▇▇▇▇▇, which approval shall not be unreasonably withheld or delayed. Each of Newco, Autoliv and ▇▇▇▇▇▇ will advise the others, promptly after it receives notice thereof, of the time when a the Newco Registration Statement has become effective or any supplement or amendment to a Registration Statement has been filed, (ii) of the issuance of any stop order, (iii) of the suspension of the qualification of Newco Common Stock or, if applicable, the SDRs issuable in connection with the Merger and the Exchange Offer for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distributionjurisdiction, or (iv) of any oral or written request by the SEC SEC, the NYSE, the SSE or the FSA for amendment of a the Newco Registration Statement or SEC comments thereon and responses thereto or requests by the SEC SEC, the SSE or the FSA for additional information. Parent and .
(d) The information supplied by Autoliv for inclusion in the Company Registration Statements, the Swedish Prospectus and/or the International Prospectus shall promptly provide each other with copies of any written communication from not, at (i) the SEC and convey to each other summaries of any oral communications with the SEC, in each case, with respect to time the Registration Statements are declared effective, (ii) the time the Proxy/Prospectus, the Swedish Prospectus and shall cooperate to prepare appropriate responses thereto the International Prospectus (and will provide each other with copies of or any such responses given amendment thereof or supplement thereto) is first mailed to the SECstockholders of Autoliv or ▇▇▇▇▇▇, as the case may be, (iii) the time of the ▇▇▇▇▇▇ Stockholders' Meeting, (iv) the Effective Time and (v) the Expiration Date, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in order to make such modifications to the Registration Statements as shall be reasonably appropriate.
(c) If, statements therein not misleading. If at any time prior to the Effective Time, any event or circumstance shall relating to Autoliv or any subsidiary of Autoliv, or their respective officers or directors, should be discovered by a party hereto Autoliv that should be set forth in an amendment or a supplement to a Registration Statement so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light either of the circumstances under which they were madeRegistration Statements, not misleading, such party Autoliv shall promptly inform ▇▇▇▇▇▇. Autoliv agrees that all documents that Autoliv or Newco is responsible for filing in connection with the other parties hereto Transactions will comply as to form and substance in all material respects with the applicable requirements of the SSE or the FSA, the Delaware Law, the Securities Act and the parties hereto shall cause an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to stockholdersExchange Act.
(de) In connection with The information supplied by ▇▇▇▇▇▇ for inclusion in the filing of Registration Statements, the Swedish Prospectus and/or the International Prospectus shall not, at (i) the time the Registration Statements and other SEC filings contemplated herebyare declared effective, each of the Company and Parent shall use its reasonable best efforts to (i) cooperate with the other to prepare pro forma financial statements that comply with the rules and regulations of the SEC to the extent required for such filings, including the requirements of Regulation S-X and (ii) provide the time the Proxy/Prospectus, the Swedish Prospectus and make reasonably available upon reasonable notice the senior management employees International Prospectus (or any amendment thereof or supplement thereto) is first mailed to the stockholders of the Company ▇▇▇▇▇▇ or ParentAutoliv, as the case may be, to discuss (iii) the materials prepared and delivered pursuant to this Section 8.02(d).”
19. Section 8.07. Section 8.07 time of the Merger Agreement is hereby amended ▇▇▇▇▇▇ Stockholders' Meeting, (iv) the Effective Time, and restated (v) the Expiration Date, contain any untrue statement of a material fact or fail to state any material fact required to be stated therein or necessary in its entirely order to read as follows:
(a) Immediately make the statements therein not misleading. If at any time prior to the ClosingEffective Time any event or circumstance relating to ▇▇▇▇▇▇ or any subsidiary of ▇▇▇▇▇▇, or their respective officers or directors, should be discovered by ▇▇▇▇▇▇ that should be set forth in an amendment or a supplement to either of the Registration Statements, the Company shallSwedish Prospectus or the International Prospectus, or ▇▇▇▇▇▇ shall cause SpinCo to, deliver promptly inform Autoliv. ▇▇▇▇▇▇ agrees that all documents that ▇▇▇▇▇▇ is responsible for filing with the SEC in connection with the Transactions will comply as to Parent (i) a certificate from SpinCo, dated as of the Closing Date and prepared in accordance with Treasury Regulations sections 1.897-2(h) and 1.1445-2(c)(3), stating that equity interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations section 1.897-2(h) (which notice shall be mailed to the IRS by SpinCo following the Closing in accordance with Treasury Regulations section 1.897-2(h)), in case of clause (i) and (ii), in form and substance reasonably acceptable to Parentin all material respects with the applicable requirements of the Indiana Law, the Securities Act and the Exchange Act.
(b) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement.”
Appears in 1 contract
Sources: Combination Agreement (New Morton International Inc)
Registration Statements. (a) As promptly as reasonably practicable, but in any event no later than January 25, 2019, (i) The Company has filed with the Company, SpinCo, Parent and Merger Sub shall jointly prepareCommission a “shelf” registration statement, and Parent shall file with the SEC, an amendment to Parent’s or amendments thereto, on Form F-3 (File No. 333-269839), which registration statement was declared effective on Form S-4 (333-227444) to register under February 23, 2023, for the 1933 Act registration of the Parent Share Issuance (together with all supplements, amendments, prospectuses and/or information statements, the “Parent Registration Statement”) and (ii) subject to the last sentence sale of this Section 8.02(a), the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and SpinCo shall file with the SEC a registration statement on Form S-1 to register under the 1933 Act, the SpinCo Common Stock to be distributed in the Distribution (together with all supplements, amendments, prospectuses and/or information statements, the “SpinCo Registration Statement” and, together with the Parent Registration Statement, the “Registration Statements”). Each certain securities of the Company, SpinCo, Parent and Merger Sub shall use its reasonable best efforts to have including the Registration Statements filed with the SEC become effective Securities under the 1933 Act on or before February 14, 2019. Each of Parent and SpinCo and the Company shall also take any action required to be taken under any applicable state securities laws in connection with, in the case of Parent, the Parent Share Issuance and, in the case of the Company, the issuance and distribution of the SpinCo Common Stock in the Distribution. The parties hereto shall cooperate in preparing and filing with the SEC the Registration Statements and any necessary amendments or supplements thereto. Parent and Merger Sub shall furnish all information concerning Parent and its SubsidiariesSecurities Act, and the Company and SpinCo shall furnish all information concerning the Company, SpinCo, the Tiger Business and the Transferred Subsidiaries, as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution of the Registration Statements or the prospectus contained therein, as applicable, and any necessary amendments or supplements thereto. None of the Registration Statements or prospectus contained therein, as applicable, or any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), except as required by Applicable Law. Following the date hereof, if doing so would not delay the consummation of the transactions contemplated hereby (except for any delay that would not, in the aggregate, result in a delay of Closing by more than three Business Days), the Company may elect for SpinCo to file with the SEC a registration statement on Form 10 in lieu of the registration statement on Form S-1 described above (and if the Company makes such an election, the term “SpinCo Registration Statement” shall refer to such Form 10 (and not the SpinCo Form S-1) for all purposes hereunder).
(b) Parent and the Company, as applicable, shall advise the other promptly after receiving oral or written notice of (i) the time when a Registration Statement has become effective or any supplement or amendment to a Registration Statement has been filed, (ii) the issuance of any stop order, (iii) the suspension of the qualification for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distribution, or (iv) any oral or written request by the SEC for amendment of a Registration Statement or SEC comments thereon or requests by the SEC for additional information. Parent and the Company shall promptly provide each other with copies of any written communication from the SEC and convey to each other summaries of any oral communications with the SEC, in each case, with respect to the Registration Statements and shall cooperate to prepare appropriate responses thereto (and will provide each other with copies of any such responses given to the SEC) and make such modifications to the Registration Statements as shall be reasonably appropriate.
(c) If, at any time prior to the Effective Time, any event or circumstance shall be discovered by a party hereto that should be set forth in an amendment or a supplement to a Registration Statement so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such party shall promptly inform the other parties hereto and the parties hereto shall cause an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to stockholders.
(d) In connection with the filing of the Registration Statements and other SEC filings contemplated hereby, each of the Company and Parent shall use its reasonable best efforts to (i) cooperate with the other to prepare pro forma financial statements that comply with the rules and regulations of the SEC to the extent required for such filingsCommission promulgated thereunder. Such registration statement, including the requirements exhibits thereto, as amended at the date of Regulation S-X and (iithis Agreement, is hereinafter called the “Registration Statement”. If the Company files a registration statement with the Commission pursuant to Rule 462(b) provide and make reasonably available upon reasonable notice the senior management employees of the Securities Act Regulations relating to the Securities, then, after such filing, any reference herein to the Registration Statement shall also be deemed to include such Rule 462(b) Registration Statement. After execution and delivery of this Agreement, the Company will prepare and file with the Commission a prospectus supplement to the base prospectus included in the Registration Statement (the “Base Prospectus”) in accordance with the provisions of Rule 430B (“Rule 430B”) and Rule 424(b) (“Rule 424(b)”) of the Securities Act Regulations; any information included in such prospectus supplement that was omitted from the Registration Statement at the time it became effective but that is deemed to be part of and included in the Registration Statement pursuant to Rule 430B is herein called the “Rule 430B Information”; the Base Prospectus, together with any prospectus supplement used in connection with the offering of the Securities that omitted Rule 430B Information, is hereinafter collectively called a “Preliminary Prospectus.” The Preliminary Prospectus, subject to completion, dated August 10, 2023 as amended and supplemented immediately prior to the Applicable Time, is hereinafter called the “Pricing Prospectus.” The Base Prospectus, together with the final prospectus supplement which includes the Rule 430B Information, in the form first furnished to the Underwriter for use in connection with the offering and confirmation of the sales of the Securities, is hereinafter collectively called the “Prospectus”. Any reference in this Agreement to the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Pricing Prospectus or Parentthe Prospectus shall be deemed to refer to and include the documents incorporated or deemed incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 6 of Form F-3 which were filed under the Exchange Act, and the rules and regulations of the Commission promulgated thereunder (the “Exchange Act Regulations”), on or before the date of this Agreement, or the issue date of the Base Prospectus, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as the case may be, deemed to discuss be incorporated therein by reference. All references in this Agreement to financial statements and schedules and any other information which is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the materials prepared and delivered pursuant to this Section 8.02(d).”
19. Section 8.07. Section 8.07 of the Merger Agreement is hereby amended and restated in its entirely to read as follows:
(a) Immediately prior to the ClosingRegistration Statement, the Company shallBase Prospectus, the Preliminary Prospectus, the Pricing Prospectus or shall cause SpinCo to, deliver to Parent the Prospectus (iand all other references of like import) a certificate from SpinCo, dated as of the Closing Date and prepared in accordance with Treasury Regulations sections 1.897-2(h) and 1.1445-2(c)(3), stating that equity interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations section 1.897-2(h) (which notice shall be mailed deemed to mean and include all such financial statements and schedules and any other information which is or is deemed to be incorporated by reference in the IRS by SpinCo following Registration Statement, the Closing in accordance with Treasury Regulations section 1.897-2(h))Base Prospectus, in the Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as the case of clause (i) and (ii), in form and substance reasonably acceptable to Parentmay be.
(b) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement.”
Appears in 1 contract
Registration Statements. SB-2 AMENDMENT AND PROXY STATEMENT. None of the information to be supplied by the Company in writing for inclusion in (a) As promptly as reasonably practicable, but in any event no later than January 25, 2019, the Registration Statement (ithe "Registration Statement") the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and Parent shall file with the SEC, an amendment to Parent’s registration statement on Form S-4 (333-227444) to register be filed under the 1933 Securities Act of 1933, as amended (the Parent Share Issuance (together with all supplements, amendments, prospectuses and/or information statements, the “Parent Registration Statement”"Securities Act") and (ii) subject to the last sentence of this Section 8.02(a), the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and SpinCo shall file with the SEC a registration statement on Form S-1 to register under Securities and Exchange Commission ("SEC") by HDG in connection with the 1933 Act, Merger for the SpinCo purpose of registering the shares of HDG Common Stock to be issued in the Merger, (b) the J&L Registration Statement (as defined in Section 7.2 hereof) to be filed under the Securities Act with the SEC by HDG in connection with Merger for the purpose of registering the common stock underlying the Company Warrants to be issued upon the exercise thereof, (c) the SB-2 Amendment (as defined in Section 7.2 hereof) to be filed under the Securities Act with the SEC by HDG, or (d) the proxy or information statement to be distributed in connection with HDG's meeting of stockholders to vote upon this Agreement and the Distribution transactions contemplated hereby (together with all supplements, amendments, prospectuses and/or information statementscollectively, the “SpinCo Registration "Proxy Statement” " and, together with the Parent prospectus included in the Registration Statement, the “Registration Statements”). Each of the Company, SpinCo, Parent and Merger Sub shall use its reasonable best efforts to have the Registration Statements filed with the SEC become effective under the 1933 Act on or before February 14, 2019. Each of Parent and SpinCo and the Company shall also take any action required to be taken under any applicable state securities laws in connection with, in the case of Parent, the Parent Share Issuance and"Proxy Statement/Prospectus") will, in the case of the CompanyProxy Statement/Prospectus or any amendments thereof or supplements thereto, at the issuance and distribution time of the SpinCo Common Stock in filing of the Distribution. The parties hereto shall cooperate in preparing and filing with the SEC the Registration Statements Proxy Statement/Prospectus and any necessary amendments or supplements thereto. Parent and Merger Sub shall furnish all information concerning Parent and its Subsidiaries, and or, in the Company and SpinCo shall furnish all information concerning the Company, SpinCo, the Tiger Business and the Transferred Subsidiaries, as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution case of the Registration Statements or Statement, the prospectus contained thereinJ&L Registration Statement and the SB-2 Amendment, as applicableamended or supplemented, and any necessary amendments or supplements thereto. None of the Registration Statements or prospectus contained therein, as applicable, or any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), except as required by Applicable Law. Following the date hereof, if doing so would not delay the consummation of the transactions contemplated hereby (except for any delay that would not, in the aggregate, result in a delay of Closing by more than three Business Days), the Company may elect for SpinCo to file with the SEC a registration statement on Form 10 in lieu of the registration statement on Form S-1 described above (and if the Company makes such an election, the term “SpinCo Registration Statement” shall refer to such Form 10 (and not the SpinCo Form S-1) for all purposes hereunder).
(b) Parent and the Company, as applicable, shall advise the other promptly after receiving oral or written notice of (i) at the time when a Registration Statement has become it becomes effective or contain any supplement or amendment to a Registration Statement has been filed, (ii) the issuance of any stop order, (iii) the suspension of the qualification for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distribution, or (iv) any oral or written request by the SEC for amendment of a Registration Statement or SEC comments thereon or requests by the SEC for additional information. Parent and the Company shall promptly provide each other with copies of any written communication from the SEC and convey to each other summaries of any oral communications with the SEC, in each case, with respect to the Registration Statements and shall cooperate to prepare appropriate responses thereto (and will provide each other with copies of any such responses given to the SEC) and make such modifications to the Registration Statements as shall be reasonably appropriate.
(c) If, at any time prior to the Effective Time, any event or circumstance shall be discovered by a party hereto that should be set forth in an amendment or a supplement to a Registration Statement so that any such document would not include any misstatement untrue statement of a material fact or 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 are made, not misleading; provided, such party however, that HDG shall promptly inform not inaccurately draft, misrepresent or omit any of the other parties hereto aforementioned information supplied by the Company or its agents; and, provided, further, that HDG shall furnish the Registration Statement, the J&L Registration Statement, the SB-2 Amendment and the parties hereto shall cause an appropriate amendment Proxy Statement/Prospectus, and any amendments or supplement describing such information supplements to be promptly filed each, to the Company for its review at least 5 business days prior to the filing of same with the SEC and, to the extent required by Applicable Law, disseminated to stockholders.
(d) In connection with the filing of the Registration Statements and other SEC filings contemplated hereby, each of the Company and Parent shall use its reasonable best efforts to (i) cooperate with the other to prepare pro forma financial statements that comply with the rules and regulations of the SEC to the extent required for such filings, including the requirements of Regulation S-X and (ii) provide and make reasonably available upon reasonable notice the senior management employees of the Company or Parent, as the case may be, to discuss the materials prepared and delivered pursuant to this Section 8.02(d).”
19. Section 8.07. Section 8.07 of the Merger Agreement is hereby amended and restated in its entirely to read as follows:
(a) Immediately at least 5 business days prior to the Closing, the Company shall, or shall cause SpinCo to, deliver to Parent (i) a certificate from SpinCo, dated as of the Closing Date and prepared in accordance with Treasury Regulations sections 1.897-2(h) and 1.1445-2(c)(3), stating that equity interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations section 1.897-2(h) (which notice shall be mailed to the IRS by SpinCo following the Closing in accordance with Treasury Regulations section 1.897-2(h)), in case of clause (i) and (ii), in form and substance reasonably acceptable to Parentdistribution thereof.
(b) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement.”
Appears in 1 contract
Registration Statements. (a) As promptly as reasonably practicable, but in any event no later than January 25, 2019, (i) the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and Parent shall file with the SEC, an amendment Zions agrees to Parent’s prepare a registration statement on Form S-4 or other applicable form (333-227444the "Registration Statement") to register under the 1933 Act the Parent Share Issuance (together with all supplements, amendments, prospectuses and/or information statements, the “Parent Registration Statement”) and (ii) subject to the last sentence of this Section 8.02(a), the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and SpinCo shall file be filed by Zions with the SEC a registration statement on Form S-1 to register under the 1933 Act, the SpinCo Common Stock to be distributed in the Distribution (together with all supplements, amendments, prospectuses and/or information statements, the “SpinCo Registration Statement” and, together connection with the Parent Registration Statement, the “Registration Statements”). Each issuance of the Company, SpinCo, Parent and Merger Sub shall use its reasonable best efforts to have the Registration Statements filed with the SEC become effective under the 1933 Act on or before February 14, 2019. Each of Parent and SpinCo and the Company shall also take any action required to be taken under any applicable state securities laws in connection with, in the case of Parent, the Parent Share Issuance and, in the case of the Company, the issuance and distribution of the SpinCo Zions Common Stock in the DistributionMerger (including the proxy statement and prospectus and other proxy solicitation materials of Company constituting a part thereof (the "Proxy Statement") and all related documents). The parties hereto shall cooperate Company agrees to cooperate, and to cause its Subsidiaries to cooperate, with Zions, its counsel and its accountants, in preparing preparation of the Registration Statement and filing the Proxy Statement. Company agrees to file the Proxy Statement in preliminary form with the SEC as soon as reasonably practicable, and Zions agrees to file the Registration Statements Statement with the SEC as soon as reasonably practicable after any SEC comments with respect to the preliminary Proxy Statement are resolved. Each of Company and any Zions agrees to use all reasonable efforts to cause the Registration Statement to be declared effective under the Securities Act as promptly as reasonably practicable after filing thereof. Zions also agrees to use all reasonable efforts to obtain all necessary amendments state securities law or supplements thereto"Blue Sky" permits and approvals required to carry out the transactions contemplated by this Agreement. Parent and Merger Sub shall Company agrees to furnish to Zions all information concerning Parent and Company, its Subsidiaries, officers, directors and the Company and SpinCo shall furnish all information concerning the Company, SpinCo, the Tiger Business and the Transferred Subsidiaries, stockholders as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution of the Registration Statements or the prospectus contained therein, as applicable, and any necessary amendments or supplements thereto. None of the Registration Statements or prospectus contained therein, as applicable, or any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), except as required by Applicable Law. Following the date hereof, if doing so would not delay the consummation of the transactions contemplated hereby (except for any delay that would not, in the aggregate, result in a delay of Closing by more than three Business Days), the Company may elect for SpinCo to file with the SEC a registration statement on Form 10 in lieu of the registration statement on Form S-1 described above (and if the Company makes such an election, the term “SpinCo Registration Statement” shall refer to such Form 10 (and not the SpinCo Form S-1) for all purposes hereunder)foregoing.
(b) Parent Each of Company and the CompanyZions agrees, as applicableto itself and its Subsidiaries, shall advise that none of the other promptly after receiving oral information supplied or written notice of to be supplied by it for inclusion or incorporation by reference in (i) the time when a Registration Statement has become effective or any supplement or amendment to a will, at the time the Registration Statement has been filed, (ii) the issuance of any stop order, (iii) the suspension of the qualification for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distribution, or (iv) any oral or written request by the SEC for amendment of a Registration Statement or SEC comments thereon or requests by the SEC for additional information. Parent and the Company shall promptly provide each other with copies of any written communication from the SEC and convey to each other summaries of any oral communications with the SEC, in each case, with respect to the Registration Statements and shall cooperate to prepare appropriate responses thereto (and will provide each other with copies of any such responses given to the SEC) and make such modifications to the Registration Statements as shall be reasonably appropriate.
(c) If, at any time prior to the Effective Time, any event or circumstance shall be discovered by a party hereto that should be set forth in an amendment or a supplement to a Registration Statement so that thereto, if any, becomes effective under the Securities Act, contain any such document would not include any misstatement untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements thereintherein not misleading, and (ii) the Proxy Statement and any amendment or supplement thereto will, at the date of mailing to stockholders and at the time of the Company Meeting, 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 or any statement which, in the light of the circumstances under which they were such statement is made, will be false or misleading with respect to any material fact, or which will omit to state any material fact necessary in order to make 32 the statements therein not false or misleading or necessary to correct any statement in any earlier statement in the Proxy Statement or any amendment or supplement thereto. Each of Company and Zions further agrees that if it shall become aware prior to the Effective Date of any information furnished by it that would cause any of the statements in the Proxy Statement to be false or misleading with respect to any material fact, or to omit to state any material fact necessary to make the statements therein not false or misleading, such party shall promptly to inform the other parties hereto party thereof and to take the parties hereto shall cause an appropriate necessary steps to correct the Proxy Statement.
(c) Zions agrees to advise Company, promptly after Zions receives notice thereof, of the time when the Registration Statement has become effective or any supplement or amendment has been filed, of the issuance of any stop order or the suspension of the qualification of Zions Common Stock for offering or sale in any jurisdiction, of the initiation or threat of any proceeding for any such purpose, or of any request by the SEC for the amendment or supplement describing such information to be promptly filed with of the SEC and, to the extent required by Applicable Law, disseminated to stockholdersRegistration Statement or for additional information.
(d) In connection with Zions agrees to provide such reasonable cooperation as is required to facilitate the filing and effectiveness of Company's registration statement on Form S-3 with regard to the offering by Company of shares of Company Common Stock upon conversion of the Registration Statements Debentures. The parties understand that such cooperation is expected to take the form of review and approval of language regarding Zions and the plan to be included in such filing. Zions agrees to take other SEC filings contemplated hereby, each actions reasonably necessary in cooperation with Company to cause the record date for stockholders entitled to vote at the Company Meeting to occur after the date of conversion of the Company and Parent shall use its reasonable best efforts to (i) cooperate with the other to prepare pro forma financial statements that comply with the rules and regulations of the SEC to the extent required for such filings, including the requirements of Regulation S-X and (ii) provide and make reasonably available upon reasonable notice the senior management employees of the Company or Parent, as the case may be, to discuss the materials prepared and delivered pursuant to this Section 8.02(d)Debentures.”
19. Section 8.07. Section 8.07 of the Merger Agreement is hereby amended and restated in its entirely to read as follows:
(a) Immediately prior to the Closing, the Company shall, or shall cause SpinCo to, deliver to Parent (i) a certificate from SpinCo, dated as of the Closing Date and prepared in accordance with Treasury Regulations sections 1.897-2(h) and 1.1445-2(c)(3), stating that equity interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations section 1.897-2(h) (which notice shall be mailed to the IRS by SpinCo following the Closing in accordance with Treasury Regulations section 1.897-2(h)), in case of clause (i) and (ii), in form and substance reasonably acceptable to Parent.
(b) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement.”
Appears in 1 contract
Sources: Merger Agreement (Fp Bancorp Inc)
Registration Statements. (a) As promptly as reasonably practicable, but in any event no later than January 25, 2019, (i) The Company has filed with the Company, SpinCo, Parent and Merger Sub shall jointly prepareCommission a “shelf” registration statement, and Parent shall file with the SEC, an amendment to Parent’s or amendments thereto, on Form F-3 (File No. 333-256087), which registration statement was declared effective on Form S-4 (333-227444) to register under May 21, 2021, for the 1933 Act registration of the Parent Share Issuance (together with all supplements, amendments, prospectuses and/or information statements, the “Parent Registration Statement”) and (ii) subject to the last sentence sale of this Section 8.02(a), the Company, SpinCo, Parent and Merger Sub shall jointly prepare, and SpinCo shall file with the SEC a registration statement on Form S-1 to register under the 1933 Act, the SpinCo Common Stock to be distributed in the Distribution (together with all supplements, amendments, prospectuses and/or information statements, the “SpinCo Registration Statement” and, together with the Parent Registration Statement, the “Registration Statements”). Each certain securities of the Company, SpinCo, Parent and Merger Sub shall use its reasonable best efforts to have including the Registration Statements filed with the SEC become effective Firm Securities under the 1933 Act on or before February 14, 2019. Each of Parent and SpinCo and the Company shall also take any action required to be taken under any applicable state securities laws in connection with, in the case of Parent, the Parent Share Issuance and, in the case of the Company, the issuance and distribution of the SpinCo Common Stock in the Distribution. The parties hereto shall cooperate in preparing and filing with the SEC the Registration Statements and any necessary amendments or supplements thereto. Parent and Merger Sub shall furnish all information concerning Parent and its SubsidiariesSecurities Act, and the Company and SpinCo shall furnish all information concerning the Company, SpinCo, the Tiger Business and the Transferred Subsidiaries, as may be reasonably requested by the other parties hereto in connection with the preparation, filing and distribution of the Registration Statements or the prospectus contained therein, as applicable, and any necessary amendments or supplements thereto. None of the Registration Statements or prospectus contained therein, as applicable, or any amendment or supplement thereto shall be filed or mailed to stockholders without the written consent of all of the parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), except as required by Applicable Law. Following the date hereof, if doing so would not delay the consummation of the transactions contemplated hereby (except for any delay that would not, in the aggregate, result in a delay of Closing by more than three Business Days), the Company may elect for SpinCo to file with the SEC a registration statement on Form 10 in lieu of the registration statement on Form S-1 described above (and if the Company makes such an election, the term “SpinCo Registration Statement” shall refer to such Form 10 (and not the SpinCo Form S-1) for all purposes hereunder).
(b) Parent and the Company, as applicable, shall advise the other promptly after receiving oral or written notice of (i) the time when a Registration Statement has become effective or any supplement or amendment to a Registration Statement has been filed, (ii) the issuance of any stop order, (iii) the suspension of the qualification for offering or sale in any jurisdiction of the Parent Common Stock issuable in connection with the Merger or the SpinCo Common Stock issuable in connection with the Distribution, or (iv) any oral or written request by the SEC for amendment of a Registration Statement or SEC comments thereon or requests by the SEC for additional information. Parent and the Company shall promptly provide each other with copies of any written communication from the SEC and convey to each other summaries of any oral communications with the SEC, in each case, with respect to the Registration Statements and shall cooperate to prepare appropriate responses thereto (and will provide each other with copies of any such responses given to the SEC) and make such modifications to the Registration Statements as shall be reasonably appropriate.
(c) If, at any time prior to the Effective Time, any event or circumstance shall be discovered by a party hereto that should be set forth in an amendment or a supplement to a Registration Statement so that any such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such party shall promptly inform the other parties hereto and the parties hereto shall cause an appropriate amendment or supplement describing such information to be promptly filed with the SEC and, to the extent required by Applicable Law, disseminated to stockholders.
(d) In connection with the filing of the Registration Statements and other SEC filings contemplated hereby, each of the Company and Parent shall use its reasonable best efforts to (i) cooperate with the other to prepare pro forma financial statements that comply with the rules and regulations of the SEC to the extent required for such filingsCommission promulgated thereunder. Such registration statement, including the requirements exhibits thereto, as amended at the date of Regulation S-X and (iithis Agreement, is hereinafter called the “Registration Statement”. If the Company files a registration statement with the Commission pursuant to Rule 462(b) provide and make reasonably available upon reasonable notice the senior management employees of the Securities Act Regulations relating to the Firm Securities, then, after such filing, any reference herein to the Registration Statement shall also be deemed to include such Rule 462(b) Registration Statement. After execution and delivery of this Agreement, the Company will prepare and file with the Commission a prospectus supplement to the base prospectus included in the Registration Statement (the “Base Prospectus”) in accordance with the provisions of Rule 430B (“Rule 430B”) and Rule 424(b) (“Rule 424(b)”) of the Securities Act; any information included in such prospectus supplement that was omitted from the Registration Statement at the time it became effective but that is deemed to be part of and included in the Registration Statement pursuant to Rule 430B is herein called the “Rule 430B Information”; the Base Prospectus, together with any prospectus supplement used in connection with the offering of the Firm Securities that omitted Rule 430B Information, is hereinafter collectively called a “Preliminary Prospectus.” The Preliminary Prospectus, subject to completion, dated March 22, 2021 as amended and supplemented immediately prior to the Applicable Time, is hereinafter called the “Pricing Prospectus.” The Base Prospectus, together with the final prospectus supplement which includes the Rule 430B Information, in the form first furnished to the Underwriters for use in connection with the offering and confirmation of the sales of the Firm Securities, is hereinafter collectively called the “Prospectus.” Any reference in this Agreement to the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Pricing Prospectus or Parentthe Prospectus shall be deemed to refer to and include the documents incorporated or deemed incorporated by reference therein (the “Incorporated Documents”) pursuant to Item 6 of Form F-3 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations of the Commission promulgated thereunder (the “Exchange Act Regulations”), on or before the date of this Agreement, or the issue date of the Base Prospectus, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as the case may be, deemed to discuss be incorporated therein by reference. All references in this Agreement to financial statements and schedules and any other information which is “contained,” “included,” “described,” “referenced,” “set forth” or “stated” in the materials prepared and delivered pursuant to this Section 8.02(d).”
19. Section 8.07. Section 8.07 of the Merger Agreement is hereby amended and restated in its entirely to read as follows:
(a) Immediately prior to the ClosingRegistration Statement, the Company shallBase Prospectus, the Preliminary Prospectus, the Pricing Prospectus or shall cause SpinCo to, deliver to Parent the Prospectus (iand all other references of like import) a certificate from SpinCo, dated as of the Closing Date and prepared in accordance with Treasury Regulations sections 1.897-2(h) and 1.1445-2(c)(3), stating that equity interests in SpinCo are not “United States real property interests,” together with (ii) notice of such certificate to the IRS in accordance with Treasury Regulations section 1.897-2(h) (which notice shall be mailed deemed to mean and include all such financial statements and schedules and any other information which is or is deemed to be incorporated by reference in the IRS by SpinCo following Registration Statement, the Closing in accordance with Treasury Regulations section 1.897-2(h))Base Prospectus, in the Preliminary Prospectus, the Pricing Prospectus or the Prospectus, as the case of clause (i) and (ii), in form and substance reasonably acceptable to Parentmay be.
(b) Except as otherwise expressly provided herein, this Agreement shall not govern Tax matters (including any administrative, procedural and related matters thereto), which shall be exclusively governed by the Tax Matters Agreement.”
Appears in 1 contract