Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such request: 3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold; 3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus; 3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders; 3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject; 3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed; 3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement; 3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued; 3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel; 3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof; 3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information; 3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders; 3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders; 3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering; 3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission); 3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and 3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
Appears in 14 contracts
Samples: Registration Rights Agreement (GigCapital5, Inc.), Registration Rights Agreement (GigCapital5, Inc.), Registration Rights Agreement (GigInternational1, Inc.)
Filings; Information. Whenever the The Company is required to will effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the and sale of such the Registrable Securities in accordance with the intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) The Company shall (i) prepare and file with the Commission as soon as practicable SEC a Registration Statement on Form S-1 or SB-2 (or, if the Company is then eligible, Form S-3) within ninety (90) days from the date hereof (if use of such form is then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company then qualifies, that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities and Securities); (ii) use its commercially reasonable best efforts to cause such filed Registration Statement to become effective within one hundred and fifty (150) days of the date hereof and remain effective until during the period set forth in Section 1.1(b) hereof (pursuant to Rule 415 under the Securities Act or otherwise); (iii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the time period prescribed by Section 1.1(b); and (iv) comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission during such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold period in accordance with the intended plan methods of distribution disposition by the Investor set forth in such Registration Statement.
(b) The Company shall file all necessary amendments and supplements to any Registration Statement in order to effectuate the purpose of this Agreement and the Securities Purchase Agreement.
(c) No later than ten (10) days prior to filing any amendment or supplement to the Prospectus;
3.1.3 prior to filing a Initial Registration Statement or any subsequent Registration Statement or prospectus, or any amendment or supplement theretothereto (excluding, furnish without charge in each case, amendments deemed to result from the filing of documents incorporated by reference therein), or such shorter period as is reasonable under the circumstances, the Company shall deliver to the UnderwritersInvestor and one firm of counsel representing the Investor, if any, and in accordance with the Holders notice provisions of Registrable Securities included in such Registration, and such Holders’ legal counselSection 4.8, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the Investor and such counsel, and thereafter deliver to the Investor and such counsel, in accordance with the notice provisions of Section 4.8, such number of copies of the Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities.
(d) The Company shall deliver, in accordance with the notice provisions of Section 4.8, to each seller of Registrable Securities owned covered by a Registration Statement such Holders;
3.1.4 prior number of conformed copies of such Registration Statement and of each amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), such number of copies of the prospectus contained in any Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to any public offering of such seller's Registrable Securities, and such other documents, as such seller may reasonably request to facilitate the disposition of its Registrable Securities.
(e) After the filing of a Registration Statement, the Company shall promptly notify the Investor of any stop order issued or threatened by the SEC in connection therewith and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(f) The Company shall use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (Investor may reasonably request in light of their its intended plan of distribution) may request, distribution and (ii) take such action necessary to cause such the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionslight of its intended plan of distribution; provided, however, that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (f), subject itself to taxation in any such jurisdiction, or take any action to which it would be consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (g) The Company shall immediately notify the Investor upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities: (i) receipt of any request by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agentany other federal or state governmental authority for additional information, as applicable, and registrar for all such Registrable Securities no later than the effective date of amendments or supplements to such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice Statement or obtain knowledge thereof, of related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such Registration Statement or notification of the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result that makes any statement made in such Registration Statement 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 the Prospectus included any changes in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney related prospectus or accountant retained by such Holders or Underwriter to participate, at each such person’s own expensedocuments so that, in the preparation case of such Registration Statement, 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, in the light of the circumstances under which they were made, and that in the case of the related 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 were made, not misleading; and (v) the Company's reasonable determination that a post-effective amendment to such Registration StatementStatement would be appropriate, and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
(h) The Company shall enter into customary agreements and take such other customary actions as are reasonably required in order to expedite or facilitate the disposition by the Investor of such Registrable Securities (whereupon the Investor may, at its option, require that any or all of the representations, warranties and covenants of the Company also be made to and for the benefit of the Investor).
(i) The Company shall make available to the Investor (and will deliver to Investor's counsel), subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or its auditors and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with the Registration; provided, a Registration Statement. Records that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwisedetermines, in good faith, cooperate reasonably withto be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other legal process; provided, however, that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided, further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records that counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Investor agrees that information obtained by it as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company) shall be deemed confidential and take shall not be used by it as the basis for any market transactions in the securities of the Company unless and until such customary actions information has been made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(j) The Company shall otherwise comply with all applicable rules and regulations of the SEC, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
(k) The Company may require the Investor to promptly furnish in writing to the Company such information as may reasonably be legally required in connection with such registration including, without limitation, all such information as may be requested by the Holders, SEC or the NASD. The Investor agrees to provide such information requested in connection with such Registrationregistration within five (5) calendar days after receiving such written request, or such shorter period as is reasonable under the circumstances, and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of any Registration Statement caused by the Investor's failure to timely provide such information.
(l) The Company shall use its best efforts either: (i) to secure the inclusion for quotation on The Nasdaq Stock Market Inc.'s OTC Bulletin Board Bulletin for such Resgistrable Securities, or (ii) if, despite the Company's best efforts to satisfy the preceding clause (i), the Company is unsuccessful in satisfying the preceding clause (i), to secure the inclusion for quotation in the "pink sheets" for such Registrable Securities, and, without limiting the generality of the foregoing, in the case of clause (i) or (ii), to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. ("NASD"), as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in connection with satisfying its obligation under this Section 2(l).
Appears in 9 contracts
Samples: Securities Purchase Agreement (Diamond Entertainment Corp), Registration Rights Agreement (Diamond Entertainment Corp), Registration Rights Agreement (Diamond Entertainment Corp)
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holdersholders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
Appears in 4 contracts
Samples: Registration Rights Agreement (GigCapital2, Inc.), Registration Rights Agreement (GigCapital, Inc.), Registration Rights Agreement (GigCapital, Inc.)
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the registration and sale of such Registrable Securities in accordance with the intended plan method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request, use its best efforts to:
3.1.1 (a) prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities and other securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter disposed of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn; provided, however, that the Company shall have the right to defer any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any Demand Registration to which such Piggy-Back Registration relates, and in such each case the Company shall furnish to the holders a certificate signed by the President or Chairman of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its shareholders for such Registration Statement to be effected at such time; provided further, however, that the Company shall not have the right to defer the filing of a Demand Registration more than once in any 365-day period.
(b) prepare and file with the Commission such amendments, including post-effective amendments, and supplements to such Registration Statement and the prospectus used in connection therewith, as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act until all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn.
(c) promptly, and in any event within two (2) business days, notify the holders of Registrable Securities included in such Registration Statement of: (i) the filing of a Registration Statement, (ii) the effectiveness of a Registration Statement, (iii) when any post-effective amendment to such Registration Statement becomes effective; (iv) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (v) any request by the Commission for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or of the Prospectus;occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an 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 promptly make available to the holders of Registrable Securities included in such Registration Statement any such supplement or amendment.
3.1.3 (d) prior to filing a Registration Statement or Statement, prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders holders of Registrable Securities included in such Registrationregistration, and such Holdersholders’ legal counsel, copies of such Registration Statement documents as proposed to be filed, each amendment filed and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders holders of Registrable Securities included in such Registration registration or the their legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;holders and to provide such holders and legal counsel with a reasonable opportunity to review such documents and comment thereon, and the Company shall not file any Registration Statement or prospectus or amendment or supplement thereto, including documents incorporated by reference, to which such holders or their legal counsel shall object.
3.1.4 prior (e) take such action necessary to any public offering of Registrable Securities, use its best efforts to (i) register or qualify cause the Registrable Securities covered by the Registration Statement to be registered or qualified under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company Company, and do any and all other acts and things that may be necessary or advisable to enable the Holders holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or take any action subject itself to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent(f) enter into customary agreements (including, as if applicable, an underwriting agreement in customary form) and registrar for all take such Registrable Securities no later than other actions as are reasonably required in order to expedite or facilitate the effective date of such Registration Statement;
3.1.7 advise each seller disposition of such Registrable Securities. The representations, promptly after it shall receive notice or obtain knowledge thereof, warranties and covenants of the issuance Company in any underwriting agreement which are made to or for the benefit of any stop order by Underwriters, to the Commission suspending extent applicable, shall also be made to and for the effectiveness benefit of the holders of Registrable Securities included in such registration statement. No holder of Registrable Securities included in such registration statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such holder’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such Registration Statement or the initiation or threatening of any proceeding for sale with such purpose holder’s material agreements and promptly use its reasonable best efforts organizational documents, and with respect to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus written information relating to such holder that such holder has furnished in writing expressly for inclusion in such Registration Statement is required to be delivered under Statement.
(g) make available for inspection by the holders of Registrable Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then any Underwriter participating in effect, includes a Misstatement, and then any disposition pursuant to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if anyRegistration Statement, and any attorney attorney, accountant, or accountant other professional retained by any holder of Registrable Securities included in such Holders Registration Statement or Underwriter to participateany Underwriter, at each such person’s own expenseall financial and other records, in the preparation pertinent corporate documents, and properties of the Registration StatementCompany, as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant of them in connection with the Registration; providedsuch Registration Statement.
(h) furnish to each holder of Registrable Securities included in any Registration Statement a signed counterpart, that addressed to such representatives or Underwriters enter into a confidentiality agreementholder, in form and substance reasonably satisfactory of any opinion of counsel to the Company, prior Company delivered to the release or disclosure of any such information;
3.1.11 obtain a “comfort” Underwriter and any comfort letter from the Company’s independent registered public accountants in delivered to any Underwriter. In the event no legal opinion is delivered to any Underwriter, the Company shall furnish to each holder of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions Registration Statement, at any time that such holder elects to use a prospectus, an opinion of counsel to the Company to the effect that the Registration Statement containing such prospectus has been declared effective and negative assurance letters, and may be found reasonably satisfactory to a majority that no stop order is in interest of the participating Holders;effect.
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 (i) make available to its security holdersshareholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement months, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(j) cause all Registrable Securities included in any registration to be listed on such exchanges or any successor rule promulgated thereafter otherwise designated for trading in the same manner as similar securities issued by the Commission);
3.1.15 Company are then listed or designated or, if no such similar securities are then listed or designated, in a manner satisfactory to the Registration involves holders of a majority of the Registration of Registrable Securities involving gross proceeds included in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationregistration.
Appears in 4 contracts
Samples: Registration Rights Agreement (Bioceres Crop Solutions Corp.), Registration Rights Agreement (Union Acquisition Corp.), Registration Rights Agreement (Union Acquisition Corp.)
Filings; Information. Whenever the The Company is required to effect will facilitate the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the Investor's intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) The Company shall prepare and file with the Commission as soon as practicable SEC a Registration Statement registration statement on Form S-1 or Form SB-2 (if use of such forms are then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company then qualifies and which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities and Securities); use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Securities Act, if applicable, or otherwise); prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective during the term of this Agreement; prepare and file, within one day after each Closing Date, any prospectus supplement required under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file during such period in accordance with the Commission intended methods of disposition by the Investor set forth in such amendments and post-effective Registration Statement.
(b) The Company shall file all necessary amendments to the Registration StatementStatement in order to effectuate the purpose of this Agreement.
(c) If so requested by the managing underwriters, if any, or the holders of a majority in aggregate amount of the Registrable Securities being registered, the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such supplements holders agree should be included therein, and (ii) make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment; provided, however, that the ProspectusCompany shall not be required to take any action pursuant to this Section 2.1(c)(ii) that would, as may be in the opinion of counsel for the Company, violate applicable law.
(d) In connection with the filing of a Registration Statement, the Company shall enter into such agreements and take all such other reasonable actions in connection therewith (including those reasonably requested by the Holders managing underwriters, if any, or any Underwriter the holders of a majority in aggregate principal amount of the Registrable Securities being sold) in order to expedite or as may facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company (including with respect to businesses or assets acquired or to be required acquired by the rulesCompany), regulations and the Registration Statement, prospectus and documents, if any, incorporated or instructions applicable 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, and confirm the same if and when requested; (ii) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the registration form used by selling holders of such Registrable Securities and the Company underwriters, if any, than those set forth herein (or by such other provisions and procedures acceptable to the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all holders of a majority in aggregate principal amount of Registrable Securities covered by such Registration Statement are sold and the managing underwriters, if any); and (iii) deliver such documents and certificates as may be reasonably requested by the holders of a majority in accordance aggregate principal amount of the Registrable Securities being sold, their counsel and the managing underwriters, if any, to evidence the continued validity of their representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the intended plan of distribution set forth in such Registration Statement underwriting agreement or supplement to other agreement entered into by the Prospectus;Company.
3.1.3 (e) Five Trading Days prior to filing a Registration Statement or prospectus, or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge the Company shall deliver to the Underwriters, if any, and the Holders seller of Registrable Securities included and counsel representing the seller of Registrable Securities, in such Registration, and such Holders’ legal counselaccordance with the notice provisions of Section 4.8, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by such parties, and thereafter deliver to the seller of Registrable Securities and its counsel, in accordance with the notice provisions of Section 4.8, such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities.
(f) After the filing of the Registration Statement, the Company shall promptly notify the Investor of any stop order issued or threatened by the SEC in connection therewith and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (g) The Company shall use its reasonable best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, provided that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (g), subject itself to taxation in any such jurisdiction, or take any action to which it would be consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (h) The Company shall immediately notify the Investor upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities: (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agent, as applicable, and registrar for all such Registrable Securities no later than any other federal or state governmental authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result that makes any statement made in the Registration Statement 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 any changes in the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney related prospectus or accountant retained by such Holders or Underwriter to participate, at each such person’s own expensedocuments so that, in the preparation case of the Registration Statement, 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 the case of the related 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 were made, not misleading; and (v) the Company's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
(i) The Company shall enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (whereupon the Investor may, at its option, require that any or all of the representations, warranties and covenants of the Company also be made to and for the benefit of the Investor).
(j) The Company shall make available to the Investor (and will deliver to Investor's counsel), subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such Registration Statement. Records that the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; providedprovided that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into fiduciary obligation to the Company) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such information is made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a confidentiality agreementcourt of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(k) The Company shall deliver, in form and substance reasonably satisfactory accordance with the notice provisions of Section 4.8, to the Investor a signed counterpart, addressed to the Investor, of (1) an opinion or opinions of counsel to the Company, prior in such form reasonably acceptable to the release Investor, and (2) to the extent required by law or disclosure reasonably necessary to effect a sale of Registrable Securities in accordance with prevailing business practices at the time of any such information;
3.1.11 obtain sale of Registrable Securities pursuant to a “comfort” Registration Statement, a comfort letter or comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the managing Underwriter case may be, as the Investor therefore reasonably request, requests.
(l) The Company shall otherwise comply with all applicable rules and may be found reasonably satisfactory to a majority-in-interest regulations of the participating Holders;SEC, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
3.1.12 on the date the (m) The Company shall appoint a transfer agent and registrar for all such Registrable Securities are delivered for sale pursuant to covered by such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after Statement not later than the effective date of such Registration Statement.
(n) The Company may require the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds Investor to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives of the Company to participate in customary “road show” presentations that such information as may be reasonably requested by the Underwriter legally required in any Underwritten Offering; and
3.1.16 otherwiseconnection with such registration including, in good faithwithout limitation, cooperate reasonably with, and take all such customary actions information as may reasonably be requested by the Holders, SEC or the National Association of Securities Dealers. The Investor agrees to provide such information requested in connection with such Registrationregistration within ten (10) business days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of the Registration Statement directly caused by the Investor's failure to timely provide such information.
Appears in 3 contracts
Samples: Registration Rights Agreement (Hand Brand Distribution Inc), Registration Rights Agreement (Borough Corp), Registration Rights Agreement (Borough Corp)
Filings; Information. Whenever the Company is required a Large Shareholder requests that any -------------------- Registrable Securities be registered pursuant to Section 2.1 hereof, Parent will use its commercially reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously soon as reasonably practicable, and in connection with any such request:
3.1.1 (a) Parent will as soon as reasonably practicable prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which Parent then qualifies and which counsel for Parent shall deem appropriate and available for the sale of the Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan method of distribution set forth thereof, and use reasonable efforts to cause such filed registration statement to become and remain effective for a period of not less than 45 days; provided that if Parent shall furnish to such Large Shareholder a certificate signed by its Chairman, Chief Executive Officer, Chief Financial Officer or any Executive Vice President stating that in his or her good faith judgment it would be detrimental or otherwise disadvantageous to Parent or its shareholders for such Registration Statement or supplement a registration statement to be filed, or, in the case of an effective registration statement, for sales to be effected thereunder, Parent shall have a period of not more than 120 days within which to file such registration statement measured from the date of receipt of the request in accordance with Section 2.1 or, in the case of an effective registration statement, Parent shall be entitled to require such Large Shareholder to refrain from selling Registrable Securities under such registration statement for a period of up to 120 days. If Parent furnishes a notice under this paragraph at a time when a registration statement filed pursuant to this Agreement is effective, Parent shall extend the period during which such registration statement shall be maintained effective as provided in this Section 3.1(a) hereof by the number of days during the period from and including the date of the giving of notice under this paragraph to the Prospectus;date when sales under the registration statement may recommence.
3.1.3 (b) Parent will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersLarge Shareholder requesting registration and each managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to such Holders’ legal counselLarge Shareholder and each such Underwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and prospectus) as such other documents as the Underwriters and the Holders of Registrable Securities included in Large Shareholder or such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, Parent will promptly notify such Large Shareholder of any stop order issued or, to the knowledge of Parent, threatened to be issued by the SEC and take all necessary actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) Parent will use its best reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Large Shareholder reasonably (in light of their such Large Shareholder's intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things requests; provided that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall Parent will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action but for this paragraph (d), (ii) subject itself to which it would be subject to general service of process or taxation in any such jurisdiction where it or (iii) consent to service of process in any such jurisdiction.
(e) Parent shall, as promptly as reasonably practicable, notify each Large Shareholder that has sold, or is not then otherwise so subject;
3.1.5 cause all such selling, Registrable Securities hereunder, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of an event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, promptly after it shall receive notice such prospectus will not contain an untrue statement of a material fact or obtain knowledge thereof, of the issuance of omit to state any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is material fact required to be delivered stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and as promptly as practicable make available to each such Large Shareholder and to the Underwriters any such supplement or amendment. Each Large Shareholder, by requesting a registration or selling Registrable Securities Acthereunder, shall be deemed to agree with Parent that, upon receipt of any notice from Parent of the happening of any event of the kind described in the preceding sentence, such Large Shareholder will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt of the copies of such supplemented or amended prospectus and, if so directed by Parent, such Large Shareholder will deliver to Parent all copies, other than permanent file copies then in Large Shareholder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event Parent shall give such notice, Parent shall extend the period during which any registration statement shall be maintained effective as provided in Section 3.1(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when Parent shall make available such supplemented or amended prospectus.
(f) In the event of the issuance of a result stop order suspending the effectiveness of which a registration statement, or of any order suspending or preventing the Prospectus use of any related prospectus or suspending the qualification of any Registrable Securities included in such Registration Statementregistration statement for sale in any jurisdiction in the United States, Parent will promptly notify the holders of Registrable Securities and will use its commercially reasonable efforts to obtain the withdrawal of such order.
(g) Parent will enter into customary agreements (including an underwriting agreement in customary form and satisfactory in form and substance to Parent in its reasonable judgment) and take such other actions as then are reasonably required in effect, includes a Misstatement, order to expedite or facilitate the sale of such Registrable Securities.
(h) Parent will furnish to each Large Shareholder that sells Registrable Securities hereunder and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriterseach managing Underwriter, if any, a signed counterpart, addressed to such Large Shareholder and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney of (i) an opinion or accountant in connection with the Registration; providedopinions of counsel to Parent and (ii) a comfort letter or comfort letters from Parent's independent auditors pursuant to SAS 72, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, each in customary form and covering such matters of the type customarily covered by “comfort” opinions or comfort letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;parties.
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 (i) Parent will make generally available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the SEC thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, j) Parent will use its reasonable efforts to make available senior executives of the Company cause all such Registrable Securities to participate in customary “road show” presentations that may be reasonably requested listed on each securities exchange on which similar securities issued by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationParent are then listed.
Appears in 3 contracts
Samples: Merger Agreement (Premiere Technologies Inc), Merger Agreement (Premiere Technologies Inc), Merger Agreement (Xpedite Systems Inc)
Filings; Information. Whenever In connection with the Company is required registration of Registrable Securities pursuant to Section 2.01 hereof, the Corporation will use commercially reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Corporation will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Corporation then qualifies and which counsel for the Corporation shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its commercially reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all for such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of such securities; provided that if the Corporation shall furnish to Buyer a certificate signed by the Corporation's Chairman, President or any Vice-President stating that in his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Corporation or its shareholders for such a registration statement to be filed as expeditiously as possible (because the sale of Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the Commission such amendments and post-effective amendments public disclosure of which at the time would be materially prejudicial to the Corporation), the Corporation may postpone the filing or effectiveness of a registration statement for a period of not more than 120 days; provided, that during any 360 day period there shall be a period of at least 120 consecutive days during which the Corporation will make a registration statement available under this Exhibit B; and provided further, that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statementwould otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Corporation's fiscal year, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by (ii) the Securities Act or rules and regulations thereunder requires the Corporation to keep include audited financials as of the Registration Statement effective until all Registrable Securities covered by end of such Registration Statement are sold in accordance with fiscal year, the intended plan Corporation may delay the effectiveness of distribution set forth in such Registration Statement or supplement registration statement for such period as is reasonably necessary to the Prospectus;include therein its audited financial statements for such fiscal year.
3.1.3 (b) The Corporation will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(c) After the filing of the registration statement, the Corporation will promptly notify the Selling Holders of any stop order issued or, to the Corporation's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Corporation will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, provided that the Company shall Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(d), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Corporation will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it shall receive make available to the Selling Holders, and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Corporation, the Selling Holders will deliver to the Corporation all copies, other than permanent file copies then in the possession of Selling Holders, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order receipt of such notice. In the event the Corporation shall give such notice, the Corporation shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the Commission suspending number of days during the effectiveness period from and including the date of the giving of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior notice to the filing of any Registration Statement date when the Corporation shall make available to the Selling Holders such supplemented or Prospectus amended prospectus.
(f) The Corporation will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are required in order to expedite or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller facilitate the sale of such Registrable Securities or its counsel;Securities.
3.1.9 notify (g) At the Holders at request of any time when a Prospectus relating Underwriter in connection with an underwritten offering the Corporation will use commercially reasonable efforts to such Registration Statement is required cause to be delivered under the Securities Actfurnished (i) an opinion of counsel, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then addressed to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, covering such customary matters as the managing Underwriter may reasonably request and any attorney (ii) a comfort letter or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s Corporation's independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such customary matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 (h) The Corporation will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, i) The Corporation will use its commercially reasonable efforts to make available senior executives cause all such Registrable Common Stock to be listed on each securities exchange or quoted on each inter-dealer quotation system on which the Common Stock is then listed or quoted. The Corporation may require Selling Holders promptly to furnish in writing to the Corporation such information regarding such Selling Holders, the plan of distribution of the Company Registrable Securities and other information as the Corporation may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 3 contracts
Samples: Registration Rights Agreement (Softnet Systems Inc), Registration Rights Agreement (Independence Holding Co), Registration Rights Agreement (Madison Investors Corp)
Filings; Information. Whenever the Company is required to effect In connection with the registration of any Registrable Securities Shares pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such request2.1:
3.1.1 (a) The Company will prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or registration statement on any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by for that the Company or by then qualifies and which counsel for the Securities Act or rules Company shall deem appropriate and regulations available for the sale of the Registrable Shares to be registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended method of distribution thereof, as may be reasonably necessary to effect the sale of such securities, the Company may require Selling Holders to promptly furnish in writing to the Company such information regarding such Selling Holders, the plan of distribution set forth of the Registrable Shares and other information as the Company may be legally required to disclose in connection with such Registration Statement or supplement to the Prospectus;registration.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Shares by such the Selling Holders;.
3.1.4 prior (c) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued or, to any public offering of Registrable Securitiesthe Company’s knowledge, threatened to be issued by the Commission and use its best commercially reasonable efforts to prevent the entry of such stop order or to remove it if entered.
(id) register or In addition to the requirements imposed on the Company elsewhere herein, the Company will qualify the Registrable Securities covered by the Registration Statement Shares for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included may reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of the Registrable Shares owned by such Registrable Securities Selling Holder in such jurisdictions; provided, provided that the Company shall will not be required to (i) qualify to generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.1(d), (ii) subject itself to taxation in any such jurisdiction, or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Company will as promptly as is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 practicable notify the Holders Selling Holders, at any time when a Prospectus prospectus relating to the sale of the Registrable Shares is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such Registration Statement is prospectus so that, as thereafter delivered to the purchasers of such Registrable Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be delivered stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and promptly make available to the Securities ActSelling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, the Selling Holders will forthwith discontinue the offer and sale of Registrable Shares pursuant to the registration statement covering such Registrable Shares until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders shall deliver to the Company all copies, other than permanent file copies then in the possession of the Selling Holders, of the happening most recent prospectus covering such Registrable Shares at the time of receipt of such notice. Furthermore, in the event the Company shall give such notice, the Company shall, as promptly as is practical, subject to the suspension rights under Section 2.1(c), if applicable, prepare 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, and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder, such prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions (including, without limitation, participation in road shows and investor conference calls) as are required in order to expedite or facilitate the sale of such Registrable Shares.
(g) At the request of any event Underwriter in connection with an underwritten offering, the Company will furnish (i) an opinion of counsel, addressed to the Underwriters and the Selling Holders, covering such customary matters as the managing Underwriter and the Selling Holders may reasonably request and (ii) a result comfort letter or comfort letters from the Company’s independent public accountants addressed to the Underwriters and the Selling Holders covering such customary matters as the managing Underwriter or the Selling Holders may reasonably request.
(h) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Shares being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of which the Prospectus included underwritten offering of the Registrable Shares to be sold in such Registration Statement, as then in effect, includes a Misstatementoffering, and then to correct promptly make all required filings of such Misstatement prospectus supplement or post-effective amendment.
(i) The Company shall promptly make available for inspection by Purchaser (as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative any Selling Holder) or Underwriter participating in any disposition pursuant to be selected by a majority of the participating Holders), the Underwriters, if anyany registration statement, and any attorney attorney, accountant or accountant other agent or representative retained by Purchaser (as representative of any such Holders Selling Holder) or Underwriter to participate(collectively, at each such person’s own expensethe “Inspectors”), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the “Records”), as shall reasonably be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspector in connection with the Registrationsuch registration statement; provided, however, that unless the disclosure of such representatives Records is necessary to avoid or Underwriters enter into correct a confidentiality agreementmisstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, in form and substance reasonably satisfactory the Company shall not be required to provide any information under this subparagraph (i) if (A) the Company believes, after consultation with counsel for the Company, prior that to do so would cause the release Company to forfeit an attorney-client privilege that was applicable to such information or disclosure of any such information;
3.1.11 obtain a “comfort” letter (B) if the Company has requested and been granted from the Company’s independent registered public accountants Commission confidential treatment of such information contained in any filing with the event of an Underwritten RegistrationCommission or documents provided supplementally or otherwise.
(j) The Company shall cause the Common Stock included in any registration statement to be listed on each securities exchange on which securities issued by the Company are then listed, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date if the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Shares so qualify.
(k) The Company shall provide a CUSIP number for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily Registrable Shares included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings registration statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after not later than the effective date of such registration statement.
(l) The Company shall cooperate with each Selling Holder and each Underwriter participating in the Registration Statement which satisfies disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the provisions Financial Industry Regulatory Authority (“FINRA”).
(m) The Company shall, as may be reasonably requested, participate in any financial roadshow organized for purposes of publicizing the sale or other disposition of the Registrable Shares. Such participation shall include, but not be limited to, dispatch by the Company of personnel, on a reasonable basis and subject to the operational needs of the Company, to assist in each presentation made during the roadshow, and provision of the Company data needed for purposes of the roadshow.
(n) The Company shall, during the period when the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Section 11(a13(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationExchange Act.
Appears in 3 contracts
Samples: Registration Rights Agreement (Supertel Hospitality Inc), Registration Rights Agreement (Supertel Hospitality Inc), Purchase Agreement (Supertel Hospitality Inc)
Filings; Information. Whenever the The Company is required to will effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the and sale of such Registrable Securities in accordance with the intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) The Company shall prepare and file with the Commission as soon as practicable a SEC one or more Registration Statement as defined in Section 1.1(a) (if use of such forms are then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company then qualifies and which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities and Securities); use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Act or otherwise); prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the time periods prescribed by Section 1.1(b); and comply with the provisions of the Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission during such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold period in accordance with the intended plan methods of distribution disposition by the Holder set forth in such Registration Statement or supplement Statement. The Company shall file complete and full responses, including amendments to the Prospectus;Registration Statements and provision of supplemental information to letters of comment and oral comments made by the SEC within fourteen (14) days of the receipt by the Company or its counsel of the oral or written comments.
3.1.3 prior (b) The Company shall file all necessary amendments to filing a the Registration Statement or prospectusin order to effectuate the purpose of this Agreement, Subscription Agreement and the Exchange Rights Agreement.
(c) If so requested by the managing underwriters, if any, or any the holders of a majority in aggregate principal amount of the Registrable Securities being sold in connection with the filing of a Shelf Registration, the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment or supplement thereto, furnish without charge to such information as the Underwritersmanaging underwriters, if any, and the Holders of Registrable Securities such holders agree should be included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take make all required filings of such action necessary to cause such Registrable Securities covered by prospectus supplement or post-effective amendment as soon as practicable after the Registration Statement Company has received notification of the matters to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included incorporated in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsprospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action pursuant to which it would be subject to general service this Section 2.1(c)(ii) that would, in the opinion of process or taxation in any counsel for the Company, violate applicable law.
(d) In connection with the filing of a Registration Statement, the Company shall enter into such jurisdiction where it is not then otherwise so subject;
3.1.5 cause agreements and take all such other reasonable actions in connection therewith (including those reasonably requested by the managing underwriters, if any, or the holders of a majority in aggregate principal amount of the Registrable Securities being sold) in order to be listed on each securities exchange expedite or automated quotation system on which similar securities issued by facilitate the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller disposition of such Registrable Securities, promptly after it shall receive notice and in such connection, whether or obtain knowledge thereofnot an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the issuance of any stop order Company (including with respect to businesses or assets acquired or to be acquired by the Commission suspending Company), and the effectiveness of such Registration Statement Statement, prospectus and documents, if any, incorporated or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is deemed to be incorporated by reference into such Registration Statement or Prospectustherein, furnish a copy thereof in each case, in form, substance and scope as are customarily made by issuers to each seller underwriters in underwritten offerings, and confirm the same if and when requested; (ii) if an underwriting agreement is entered into, the same shall contain indemnification provision and procedures no less favorable to the selling holders of such Registrable Securities or its counsel;
3.1.9 notify and the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwritersunderwriters, if any, than those set forth herein (or such other provisions and any attorney or accountant retained procedures acceptable to the holders of a majority in aggregate principal amount of Registrable Securities covered by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, Statement and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agentunderwriters, if any, ); and the Underwriters, if any, covering (iii) deliver such legal matters with respect to the Registration in respect of which such opinion is being given documents and certificates as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter holders of a majority in aggregate principal amount of the Registrable Securities being sold, their counsel and the managing underwriters, if any, to evidence the continued validity of their representations and warranties made pursuant to clause (i) above and to evidence compliance with any Underwritten Offering; and
3.1.16 otherwise, customary conditions contained in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested the underwriting agreement or other agreement entered into by the Holders, in connection with such RegistrationCompany.
Appears in 3 contracts
Samples: Registration Rights Agreement (NCT Group Inc), Registration Rights Agreement (NCT Group Inc), Registration Rights Agreement (NCT Group Inc)
Filings; Information. Whenever a Stockholder (the Company is required to effect the registration of "Registering Stockholder") requests that any Registrable Securities be registered pursuant to Section 2Article II, the Company shall will use its best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with to the intended plan of distribution thereof extent required by Article II, as expeditiously promptly as is practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company deems appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all for a period of not less than 90 calendar days or, if less, the period required for such Registrable Securities covered by such Registration Statement have been to be sold;
3.1.2 prepare and file with ; provided, however, that if the Commission such amendments and post-effective amendments Company furnishes to the Registration Statement, and such supplements to the Prospectus, as may be requested Registering Stockholder a certificate signed by the Holders Company's Chief Executive Officer stating that the Board of Directors has determined that it would be materially detrimental or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable otherwise materially disadvantageous to the registration form used by the Company or by its Stockholders (whether because of any proposed material transaction or otherwise) for such a registration statement to be filed as expeditiously as possible, the Securities Act or rules and regulations thereunder Company will have a period of not more than 120 calendar days within which to keep file such registration statement measured from the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with date of the intended plan Company's receipt of distribution set forth in such Registration Statement or supplement to the Prospectus;Registering Stockholder's request for registration.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersRegistering Stockholder and each applicable Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Registering Stockholder and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Holders of Registrable Securities included in Registering Stockholder or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, the Company will promptly notify the Registering Stockholder of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission or any state securities agency or authority and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior (d) The Company will endeavor to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsRegistering Stockholder reasonably requests; provided, however, that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection (d), (ii) subject itself to taxation in any such jurisdiction, or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Company will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify the Registering Stockholder, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it shall receive make available to the Registering Stockholder and to the Underwriters any such supplement or amendment. The Registering Stockholder agrees that, upon receipt of any notice from the Company of the occurrence of any event of the kind described in the preceding sentence, the Registering Stockholder will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Registering Stockholder and the Underwriters of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Company, the Registering Stockholder will deliver to the Company all copies, other than permanent file copies then in the Registering Stockholder possession, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order receipt of such notice. In the event the Company gives such notice, the Company will extend the period during which such registration statement will be effective as provided in Section 3.1(a) by the Commission suspending number of days during the effectiveness period from and including the date of the giving of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior notice to the filing date when the Company will make available to the Registering Stockholder such supplemented or amended prospectus.
(f) The Company will enter into customary agreements (including in the case of any Registration Statement an underwritten offering an underwriting agreement in customary form) and the Company and its officers will take such other actions as are reasonably required in order to expedite or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller facilitate the sale of such Registrable Securities or its counsel;
3.1.9 notify the Holders at Securities, including participation in any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant "road show" undertaken in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory sale.
(g) The Company will furnish to the CompanyRegistering Stockholder and to each Underwriter a signed counterpart, prior addressed to the release Registering Stockholder or disclosure such Underwriter, of any such information;
3.1.11 obtain (i) an opinion or opinions of counsel to the Company and (ii) a “comfort” comfort letter or comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the Registering Stockholder or the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the (h) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement will satisfy the provisions of Section 11(a) of the Securities 1933 Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, i) The Company will use its reasonable efforts to make available senior executives cause all such Registrable Securities to be listed on each securities exchange on which securities of the same class issued by the Company are then listed.
(j) The Company may require the Registering Stockholder promptly to participate furnish in customary “road show” presentations that writing to the Company such information regarding the Registering Stockholder, the plan of distribution of the Registrable Securities and other information as the Company may from time to time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration. The furnishing of such information will be a condition to the Company's obligations hereunder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Childrens Place Retail Stores Inc), Registration Rights Agreement (Childrens Place Retail Stores Inc)
Filings; Information. Whenever the Company is required under Section 2.02 to file a registration statement and use its reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such requestSecurities:
3.1.1 (a) Synetic shall prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which Synetic then qualifies and which counsel for Synetic shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder and use its reasonable best efforts to cause such Registration Statement registration statement to become effective and remain effective until for the lesser of (i) the period of the distribution contemplated thereby and (ii) thirty (30) days.
(b) Synetic shall, as expeditiously as reasonably possible, prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement have been sold;registration statement.
3.1.2 prepare (c) Synetic shall, if requested, furnish to each and file with each managing underwriter copies of the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or prospectus (including any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth preliminary prospectus) included in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any registration statement and each amendment or supplement theretothereto (including, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including case, all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents thereto) as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders they may reasonably request in order to facilitate the disposition sale of the Registrable Securities.
(d) After the filing of the registration statement, Synetic will notify the Stockholders of any stop order issued or, to the knowledge of Synetic, threatened to be issued, by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(e) At any time when a prospectus relating to the sale of the Registrable Securities owned is required by such Holders;
3.1.4 prior law to any public offering be delivered in connection with sales of the Registrable Securities, use its best efforts Synetic shall deliver, as promptly as practicable, a written notice (a "Suspension Notice") to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue each of the business and operations Stockholders specifying the occurrence of an event requiring the Company and do any and all other acts and things that may be necessary preparation of a supplement or advisable amendment to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise prospectus so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agentthat, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, promptly after it shall receive notice such prospectus will not contain an untrue statement of a material fact or obtain knowledge thereofomit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the issuance of any stop order by the Commission suspending the effectiveness circumstances under which they were made, not misleading. Each Stockholder agrees that, upon receipt of such Registration Statement or Suspension Notice from Synetic, such Stockholder will forthwith discontinue the initiation or threatening offer and sale of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior Registrable Securities pursuant to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of registration statement covering such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, until receipt of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.copies of
Appears in 2 contracts
Samples: Registration Rights Agreement (Synetic Inc), Registration Rights Agreement (Synetic Inc)
Filings; Information. Whenever the The Company is required to shall effect the registration of any Registrable Securities pursuant with respect to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such the Registrable Securities by the Investor in accordance with the intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicableis commercially reasonable, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) Subject to Section 1.1(e), the Company shall (i) prepare and file with the Commission as soon as practicable a the Registration Statement with respect to such Registrable Securities and Statement; (ii) use its commercially reasonable best efforts to cause such filed Registration Statement to become effective and to remain effective until all Registrable (pursuant to Rule 415 under the Securities covered by such Registration Statement have been sold;
3.1.2 Act or otherwise); (iii) prepare and file with the Commission such amendments and post-effective amendments supplements to the Registration Statement, Statement and such supplements to the Prospectus, Prospectus used in connection therewith as may be requested necessary to keep such Registration Statement effective for the time period prescribed by Section 4.2 and in order to effectuate the Holders or any Underwriter purpose of Registrable Securities or as may be required by this Agreement, the rulesPurchase Agreement, regulations or instructions applicable to and the registration form used by Warrant; and (iv) comply in all material respects with the Company or by provisions of the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold during such period in accordance with the intended plan methods of distribution disposition by the Investor set forth in such Registration Statement or Statement; provided, however, that the Company shall be under no obligation to supplement the Prospectus to reflect the issuance of any Shares pursuant to a Draw Down at any time prior to the Prospectus;
3.1.3 prior first Trading Day following the Settlement Date with respect to filing a Registration Statement or prospectussuch Shares and, or any amendment or supplement theretoprovided, furnish without charge further, that the Investor shall be responsible for the delivery of the Prospectus to the Underwriters, if anyPersons to whom the Investor sells the Shares and the Warrant Shares, and the Holders Investor agrees to dispose of Registrable Securities included in such Registration, compliance with the plan of distribution described in the Registration Statement and such Holders’ legal otherwise in compliance with applicable federal and state securities laws.
(b) The Company shall deliver to the Investor and its counsel, in accordance with the notice provisions of Section 4.8, such number of copies of such the Registration Statement as proposed to be filedStatement, each amendment and supplement thereto (to such Registration Statement (the extent related to the resale of the Registrable Securities and in each such case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus included in such Registration Statement (including each preliminary Prospectus)prospectus, and in each case to the extent related to the resale of the Registrable Securities) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, provided, however, that to the extent reasonably practicable, such delivery may be accomplished via electronic means.
(c) After the filing of the Registration Statement, the Company shall promptly notify the Investor of any stop order issued or, to the Knowledge of the Company, threatened by the Commission in connection therewith and take all commercially reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use its best commercially reasonable efforts to (i) register or qualify the sale of the Registrable Securities covered by the Registration Statement Investor under such other securities or “blue sky” sky laws of such jurisdictions each jurisdiction in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such the sale of the Registrable Securities covered by the Registration Statement Investor to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other customary acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, however, that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.1(d), subject itself to taxation in any such jurisdiction, consent or take any action to which it would be subject itself to general service of process or taxation in any such jurisdiction where it is not then jurisdiction, change any existing business practices, benefit plans or outstanding securities or amend or otherwise so subject;modify the Charter or Bylaws.
3.1.5 cause all such Registrable Securities (e) The Company (i) shall make available to be listed on each securities exchange or automated quotation system on which similar securities issued the Investor (and will deliver to the Investor’s counsel), subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all public correspondence between the Commission and the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than concerning the effective date Registration Statement (to the extent relevant to the resale of such Registration Statement;
3.1.7 advise each seller of such the Registrable Securities) and (ii) will also make available for inspection by the Investor and any attorney, promptly after it shall receive accountant or other professional retained by the Investor and reasonably acceptable to the Company (collectively, the “Inspectors”), upon reasonable advance notice or obtain knowledge thereofduring normal business hours all financial and other records, pertinent corporate documents and properties of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five Company (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders)collectively, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter “Records”) as shall be reasonably necessary to participate, at each such person’s own expense, in the preparation of the Registration Statementenable them to exercise their due diligence responsibility, and cause the Company’s officers, directors officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with the RegistrationRegistration Statement; provided, however, that such representatives (x) the Company shall not be obligated to disclose any portion of the Records consisting of either (A) material non public information or Underwriters enter into (B) confidential information of a confidentiality agreement, in form third party and substance reasonably satisfactory to the Company, prior to the release or disclosure of (y) any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants Inspectors must agree in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company writing for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives benefit of the Company not to participate use or disclose any such Records except as provided in customary “road show” presentations this Section 2.1(e). Records that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwiseCompany determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other judicial or governmental process; provided, however, that prior to any disclosure or release pursuant to the immediately preceding clause, the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors’ obligation not to disclose such Records; and, provided, further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records that counsel has advised the Inspectors that the Inspectors are compelled to disclose; provided, however, that upon any such required disclosure, such Inspector shall use his or her best efforts to obtain reasonable assurances that confidential treatment will be afforded such information. The Investor agrees that information obtained by it or any Inspector solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company) shall be deemed confidential and shall not be used for any purposes other than as indicated above or by it or any Inspector as the basis for any market transactions in the securities of the Company or its affiliates unless and until such information is made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(f) The Company shall otherwise comply in all material respects with all applicable rules and regulations of the Commission, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
(g) The Company shall appoint (or shall have appointed) a transfer agent and registrar for all of the Common Stock covered by such Registration Statement not later than the effective date of such Registration Statement.
(h) The Investor shall cooperate with the Company, as reasonably withrequested by the Company, in connection with the preparation and take filing of any Registration Statement hereunder. The Company may require the Investor to promptly furnish in writing to the Company such customary actions information as may reasonably be required in connection with such registration including, without limitation, all such information as may be requested by the HoldersCommission, the NASDAQ Stock Market or FINRA or any state securities commission and all such information regarding the Investor, the Registrable Securities held by the Investor and the intended method of disposition of the Registrable Securities. The Investor agrees to provide such information requested in connection with such Registrationregistration within five (5) business days after receiving such written request and the Company shall not be responsible for, or incur any penalties under this Agreement with respect to, any delays in obtaining or maintaining the effectiveness of the Registration Statement caused by the Investor’s failure to timely provide such information.
(i) Upon receipt of a Blackout Notice from the Company, the Investor shall immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until (i) the Company advises the Investor that the Blackout Period has terminated and (ii) the Investor receives copies of a supplemented or amended prospectus, if necessary. If so directed by the Company, the Investor will deliver to the Company (at the expense of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in the Investor’s possession (other than a limited number of file copies) of the prospectus covering such Registrable Securities that is current at the time of receipt of such notice.
Appears in 2 contracts
Samples: Registration Rights Agreement (Electro Optical Sciences Inc /Ny), Registration Rights Agreement (Biosante Pharmaceuticals Inc)
Filings; Information. Whenever the Company is required to effect the registration of any Holder requests that any Registrable Securities be registered pursuant to Section 22.1, the Company shall will use its commercially reasonable best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will, subject to Section 2.1(d), as expeditiously as possible prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its commercially reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by the earlier of (i) 90 days from the date such Registration Statement have been sold;
3.1.2 prepare and file with registration statement became effective or (ii) the Commission such amendments and post-effective amendments to date on which the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter sale of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by has been completed. If the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold receives multiple demands for registration in accordance with this Agreement, then, except as provided in Section 2.1(a), such demands shall be handled in the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;order received.
3.1.3 (b) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder, one counsel representing all such Selling Holders, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counselregistration statement, copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to prompt review and approval by the foregoing, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the registration statement, the Company will promptly notify each Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its commercially reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder’s intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;(other than special service of process).
3.1.5 cause all such Registrable Securities to be listed on (e) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a Misstatement, and then material fact or omit to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative state any material fact required to be selected by a majority stated therein or necessary to make the statements therein not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(f) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the participating Holders), the Underwriterssuch Registrable Securities.
(g) The Company will deliver promptly to each Selling Holder of such Registrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe “Inspectors”), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the “Records”), subject to restrictions imposed by any governmental authority governing access to classified information, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; providedprovided that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors’ obligation not to disclose such Records; and provided further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory fiduciary obligation to the Company, prior ) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such is made generally available to the release or public. Each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of any such information;
3.1.11 obtain Records is sought in a “comfort” letter from court of competent jurisdiction, give notice to the Company and allow the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters at its expense, to undertake appropriate action to prevent disclosure of the type customarily covered by “comfort” letters as Records deemed confidential.
(h) The Company will otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the managing Underwriter may reasonably requestSEC, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder Act.
(or any successor rule promulgated thereafter i) The Company will use its commercially reasonable best efforts (a) to cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by the CommissionCompany are then listed (if any);
3.1.15 , if the Registration involves listing of such Registrable Securities is then permitted under the Registration rules of such exchange or (b) to secure designation of all such Registrable Securities as a National Association of Securities Dealers Automatic Quotation (“NASDAQ”) “national market system security” within the meaning of Rule 11Aa2-l of the SEC or, to secure NASDAQ authorization for such Registrable Securities, if similar securities issued by the Company are so designated.
(j) The Company may require each Selling Holder of Registrable Securities involving gross proceeds to promptly furnish in excess writing to the Company such information regarding the distribution of $25,000,000the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration.
(k) The Chairman of the Board of Directors of the Company, use its reasonable efforts to make available senior executives the Chief Executive Officer of the Company, all other executive officers, and all other members of the management of the Company will cooperate fully in any offering of Registrable Securities pursuant to participate Section 2.1 hereof, including, without limitation, participation in customary meetings with potential investors, preparation of all materials for such investors, and making management of the Company available for “road show” presentations that may be reasonably requested and similar selling efforts. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(e) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof (such period during which a Selling Holder is required to refrain from disposition of Registrable Securities, a “Suspension Period”), and, if so directed by the Underwriter Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in any Underwritten Offering; and
3.1.16 otherwisesuch Selling Holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested Section 3.1(a) hereof) by the Holders, in connection number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when the Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with such Registrationthe requirements of Section 3.1(e) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Hhgregg, Inc.), Registration Rights Agreement (HHG Distributing, LLC)
Filings; Information. Whenever the The Company is required to will effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the and sale of such Registrable Securities in accordance with the intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) The Company shall prepare and file with the Commission as soon as practicable a SEC one or more Registration Statement as defined in Section 1.1(a) (if use of such forms are then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company then qualifies and which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities and Securities); use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Act or otherwise); prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the time periods prescribed by Section 1.1(b); and comply with the provisions of the Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission during such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold period in accordance with the intended plan methods of distribution disposition by the Holder set forth in such Registration Statement or supplement Statement. The Company shall file complete and full responses, including amendments to the Prospectus;Registration Statements and provision of supplemental information to letters of comment and oral comments made by the SEC within thirty (30) days of the receipt by the Company or its counsel of the oral or written comments.
3.1.3 prior (b) The Company shall file all necessary amendments to filing a the Registration Statement or prospectusin order to effectuate the purpose of this Agreement, Subscription Agreement and the Exchange Rights Agreement.
(c) If so requested by the managing underwriters, if any, or any the holders of a majority in aggregate principal amount of the Registrable Securities being sold in connection with the filing of a Shelf Registration, the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment or supplement thereto, furnish without charge to such information as the Underwritersmanaging underwriters, if any, and the Holders of Registrable Securities such holders agree should be included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take make all required filings of such action necessary to cause such Registrable Securities covered by prospectus supplement or post-effective amendment as soon as practicable after the Registration Statement Company has received notification of the matters to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included incorporated in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsprospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action pursuant to which it would be subject to general service this Section 2.1(c)(ii) that would, in the opinion of process or taxation in any counsel for the Company, violate applicable law.
(d) In connection with the filing of a Registration Statement, the Company shall enter into such jurisdiction where it is not then otherwise so subject;
3.1.5 cause agreements and take all such other reasonable actions in connection therewith (including those reasonably requested by the managing underwriters, if any, or the holders of a majority in aggregate principal amount of the Registrable Securities being sold) in order to be listed on each securities exchange expedite or automated quotation system on which similar securities issued by facilitate the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller disposition of such Registrable Securities, promptly after it shall receive notice and in such connection, whether or obtain knowledge thereofnot an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the issuance of any stop order Company (including with respect to businesses or assets acquired or to be acquired by the Commission suspending Company), and the effectiveness of such Registration Statement Statement, prospectus and documents, if any, incorporated or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is deemed to be incorporated by reference into such Registration Statement or Prospectustherein, furnish a copy thereof in each case, in form, substance and scope as are customarily made by issuers to each seller underwriters in underwritten offerings, and confirm the same if and when requested; (ii) if an underwriting agreement is entered into, the same shall contain indemnification provision and procedures no less favorable to the selling holders of such Registrable Securities or its counsel;
3.1.9 notify and the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwritersunderwriters, if any, than those set forth herein (or such other provisions and any attorney or accountant retained procedures acceptable to the holders of a majority in aggregate principal amount of Registrable Securities covered by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, Statement and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agentunderwriters, if any, ); and the Underwriters, if any, covering (iii) deliver such legal matters with respect to the Registration in respect of which such opinion is being given documents and certificates as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter holders of a majority in aggregate principal amount of the Registrable Securities being sold, their counsel and the managing underwriters, if any, to evidence the continued validity of their representations and warranties made pursuant to clause (i) above and to evidence compliance with any Underwritten Offering; and
3.1.16 otherwise, customary conditions contained in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested the underwriting agreement or other agreement entered into by the Holders, in connection with such RegistrationCompany.
Appears in 2 contracts
Samples: Registration Rights Agreement (NCT Group Inc), Registration Rights Agreement (NCT Group Inc)
Filings; Information. Whenever MUSI or the Company is required to effect Frisby Stockholder Representative (the registration of "Registering Stockholder") request that any Registrable Securities be registered pursuant to Section 2Article III, the Company shall will use its best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company deems appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with for a period of not less than 90 days; provided, however, that if the Commission such amendments and post-effective amendments Company furnishes to the Registration Statement, and such supplements to the Prospectus, as may be requested Registering Stockholder a certificate signed by the Holders Company's Chief Executive Officer, President or any Underwriter of Registrable Securities Vice-President stating that in his good faith judgment it would be detrimental or as may be required by the rules, regulations or instructions applicable otherwise disadvantageous to the registration form used by the Company or by its stockholders for such a registration statement to be filed as expeditiously as possible, the Securities Act or rules and regulations thereunder Company will have a period of not more than 90 calendar days within which to keep file such registration statement measured from the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold date of the Company's receipt of the Registering Stockholder's request for registration in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Article III.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersRegistering Stockholder and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Registering Stockholder and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Holders of Registrable Securities included in Registering Stockholder or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, the Company will promptly notify the Registering Stockholder of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior (d) The Company will endeavor to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsRegistering Stockholder reasonably requests; provided, however, that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection (d), (ii) subject itself to taxation in any such jurisdiction, or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Company will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify the Registering Stockholder at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it shall receive make available to the Registering Stockholder and to the Underwriters any such supplement or amendment. The Registering Stockholder agrees that, upon receipt of any notice from the Company of the occurrence of any event of the kind described in the preceding sentence, the Registering Stockholder will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Registering Stockholder and the Underwriters of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Company, the Registering Stockholder will deliver to the Company all copies, other than permanent file copies then in the Registering Stockholder's possession, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order receipt of such notice. In the event the Company gives such notice, the Company will extend the period during which such registration statement will be contained effective as provided in Section 4.1(a) by the Commission suspending number of days during the effectiveness period from and including the date of the giving of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior notice to the filing of any Registration Statement date when the Company will make available to the Registering Stockholder such supplemented or Prospectus amended prospectus.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller facilitate the sale of such Registrable Securities Securities.
(g) The Company will furnish to the Registering Stockholder and to each Underwriter a signed counterpart, addressed to the Registering Stockholder or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities ActUnderwriter, of the happening (i) an opinion or opinions of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory counsel to the Company, prior to the release Company and (ii) a comfort letter or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the Registering Stockholder or the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the (h) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, i) The Company will use its reasonable efforts to make available senior executives cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed or, if not so listed, on a national securities exchange. The Company may require the Registering Stockholder promptly to furnish in writing to the Company such information regarding the Registering Stockholder, the plan of distribution of the Registrable Securities and other information as the Company may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 2 contracts
Samples: Stockholders Agreement (Frisby Technologies Inc), Stockholders Agreement (Frisby Technologies Inc)
Filings; Information. Whenever the The Company is required to shall effect the registration of any Registrable Securities pursuant with respect to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such the Registrable Securities by the Investor in accordance with the intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) Subject to Section 1.1(e), the Company shall (i) prepare and file with the Commission as soon as practicable a the Registration Statement with respect to such Registrable Securities and Statement; (ii) use its commercially reasonable best efforts to cause such filed Registration Statement to become effective and to remain effective until all Registrable (pursuant to Rule 415 under the Securities covered by such Registration Statement have been sold;
3.1.2 Act or otherwise); (iii) prepare and file with the Commission such amendments and post-effective amendments supplements to the Registration Statement, Statement and such supplements to the Prospectus, Prospectus used in connection therewith as may be requested necessary to keep such Registration Statement effective for the time period prescribed by Section 4.2 and in order to effectuate the Holders or any Underwriter purpose of Registrable Securities or as may be required by this Agreement, the rules, regulations or instructions applicable to Purchase Agreement and the registration form used by Warrant and (iv) comply with the Company or by provisions of the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold during such period in accordance with the intended plan methods of distribution disposition by the Investor set forth in such Registration Statement or Statement; provided, however, that the Company shall be under no obligation to supplement the Prospectus to reflect the issuance of any Shares pursuant to a Draw Down at any time prior to the Prospectus;Trading Day following the Settlement Date with respect to such Shares and, provided further, that the Investor shall be responsible for the delivery of the Prospectus to the Persons to whom the Investor sells the Shares and the Warrant Shares, and the Investor agrees to dispose of Registrable Securities in compliance with the plan of distribution described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws.
3.1.3 (b) Three (3) Trading Days prior to filing a the Registration Statement or prospectusProspectus, or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein, furnish without charge supplements to the Underwriters, if anyProspectus required in respect of any particular Settlement Date, and supplements to the Holders Registration Statement for which consent of Registrable Securities included or notice to the Investor is not required pursuant to Section 6.12 of the Purchase Agreement), the Company shall deliver to the Investor and to counsel representing the Investor, in such Registration, and such Holders’ legal counselaccordance with the notice provisions of Section 4.8, copies of such the Registration Statement Statement, Prospectus and/or any amendments or supplements thereto as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the Investor and such counsel, and thereafter deliver to the Investor and such counsel, in accordance with the notice provisions of Section 4.8, such number of copies of the Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, provided, however, that to the extent reasonably practicable, such delivery may be accomplished via electronic means.
(c) After the filing of the Registration Statement, the Company shall promptly notify the Investor of any stop order issued or threatened by the Commission in connection therewith and take commercially reasonable actions required to prevent the entry of such stop order or to have such stop order lifted, as the case may be.
(d) The Company shall use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions each jurisdiction in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other customary acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, however, that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.1(d), subject itself to taxation in any such jurisdiction, consent or take any action to which it would be subject itself to general service of process or taxation in any such jurisdiction where it is not then jurisdiction, change any existing business practices, benefit plans or outstanding securities or amend or otherwise so subject;modify the Charter or Bylaws.
3.1.5 cause all such Registrable Securities (e) The Company shall make available to be listed on each securities exchange or automated quotation system on which similar securities issued the Investor (and will deliver to Investor’s counsel), (A) subject to restrictions imposed by the Company are then listed;
3.1.6 provide a transfer agent United States federal government or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice any agency or obtain knowledge instrumentality thereof, copies of all public correspondence between the Commission and the Company concerning the Registration Statement and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the “Inspectors”), (B) upon reasonable advance notice during normal business hours all financial and other records and pertinent corporate documents of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five Company (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders)collectively, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter “Records”) as shall be reasonably necessary to participate, at each such person’s own expense, in the preparation of the Registration Statementenable them to exercise their due diligence responsibility, and cause the Company’s officers, directors officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with the RegistrationRegistration Statement; provided, however, that such representatives (i) the Company shall not be obligated to disclose any portion of the Records consisting of either (A) material non-public information or Underwriters enter into (B) confidential information of a confidentiality agreement, in form third party and substance reasonably satisfactory to the Company, prior to the release or disclosure of (ii) any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants Inspectors must agree in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company writing for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives benefit of the Company not to participate use or disclose any such Records except as provided in customary “road show” presentations this Section 2.1(e). Records disclosed hereunder that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwiseCompany determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other judicial or governmental process; provided, however, that prior to any disclosure or release pursuant to the immediately preceding clause, the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors’ obligation not to disclose such Records; and, provided, further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records that counsel has advised the Inspectors that the Inspectors are compelled to disclose; provided, however, that upon any such required disclosure, such Inspector shall use his or her best efforts to obtain reasonable assurances that confidential treatment will be afforded such information. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company) shall be deemed confidential and shall not be used for any purposes other than as indicated above or by it as the basis for any market transactions in the securities of the Company or its affiliates unless and until such information is made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(f) The Company shall otherwise comply in all material respects with all applicable rules and regulations of the Commission, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
(g) The Company shall appoint (or shall have appointed) a transfer agent and registrar for all of the Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement.
(h) The Investor shall cooperate with the Company, as reasonably withrequested by the Company, in connection with the preparation and take filing of any Registration Statement hereunder. The Company may require the Investor to promptly furnish in writing to the Company such customary actions information as may reasonably be required in connection with such registration including, without limitation, all such information as may be requested by the HoldersCommission or the NASD or any state securities commission and all such information regarding the Investor, the Registrable Securities held by the Investor and the intended method of disposition of the Registrable Securities. The Investor agrees to provide such information requested in connection with such Registrationregistration within five (5) Business Days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of the Registration Statement caused by the Investor’s failure to timely provide such information.
(i) Upon receipt of a Blackout Notice from the Company, the Investor shall immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until (i) the Company advises the Investor that the Blackout Period has terminated and (ii) the Investor receives copies of a supplemented or amended prospectus, if necessary. If so directed by the Company, the Investor will deliver to the Company (at the expense of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in the Investor’s possession (other than a limited number of file copies) of the prospectus covering such Registrable Securities that is current at the time of receipt of such notice.
Appears in 2 contracts
Samples: Registration Rights Agreement (Cell Genesys Inc), Registration Rights Agreement (Favrille Inc)
Filings; Information. Whenever the Company is required to effect In connection with the registration of any Registrable Securities Shares pursuant to Section 2, the 2.01 hereof:
(a) The Company shall will use its best commercially reasonable efforts to effect cause the filed Registration Statement to permit become and remain effective until earlier of (x) the sale date on which all Registrable Shares have been sold pursuant to such Registration Statement and (y) the date on which all Registrable Shares are eligible for resale under Rule 144 promulgated under the Securities Act (without regard to the volume limitations contained in Rule 144(e))(the “Effectiveness Period”).
(b) The Company will furnish to the Sellers draft copies of any Registration Statement or Prospectus or any amendments or supplements thereto proposed to be filed at least five (5) days prior to such Registrable Securities in accordance with filing.
(c) The Company will notify the intended plan of distribution thereof as expeditiously as practicableSellers and the Holders, and in connection with any such request:
3.1.1 prepare and file with the Commission as soon as practicable a after notice thereof is received by the Company, (i) when the Registration Statement or any amendment thereto has been filed or becomes effective and the Prospectus or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Shares for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such Registrable Securities purpose.
(d) After the filing of the Registration Statement, the Company will promptly notify the Holders of any stop order issued, or, to the Company’s knowledge, threatened to be issued, by the Commission and use its commercially reasonable best efforts to cause prevent the entry of such Registration Statement stop order or to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;remove it if entered.
3.1.2 (e) The Company will prepare and file with the Commission such amendments and amendments, post-effective amendments to the Registration Statement, and such supplements to such Registration Statement and the Prospectus, Prospectus used in connection therewith as may be requested necessary to keep such Registration Statement effective for the Effectiveness Period, cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Holders or any Underwriter Securities Act, and comply with the provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold (to the extent such compliance obligations fall on the Company) during such period in accordance with the intended plan methods of distribution disposition by the Holders set forth in such Registration Statement or supplement Statement.
(f) The Company will furnish to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriterseach Holder and each Underwriter, if any, and the Holders without charge, such number of Registrable Securities included in such Registration, and such Holders’ legal counsel, conformed copies of such Registration Statement as proposed to be filedStatement, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein)thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus)) and any amendments or supplements thereto, and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Shares.
3.1.4 prior to any public offering of Registrable Securities, (g) The Company will use its best commercially reasonable efforts to qualify (ior exempt) register or qualify the Registrable Securities covered by the Registration Statement Shares for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in or Underwriter, if any, reasonably request; keep each such Registration Statement registration or qualification (in light of their intended plan of distributionor exemption therefrom) may request, and (ii) take such action necessary to cause such Registrable Securities covered by effective during the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company Effectiveness Period; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Holder to consummate the disposition of the Registrable Shares owned by such Registrable Securities Holder in such jurisdictions; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(g), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(h) The Company will as promptly as practicable notify the Holders and the sole or lead managing Underwriter, if any, at any time when a Prospectus relating to the sale of the Registrable Shares is not then otherwise required by law to be delivered under the Securities Act, of the occurrence of any event requiring the preparation of a supplement or amendment to such Prospectus so subject;
3.1.5 cause all that, as thereafter delivered to the purchasers of such Registrable Securities Shares, such Prospectus will not contain an 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 were made, not misleading and promptly make available to the Holders and the sole or lead managing Underwriter, if any, any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, the Holders will forthwith discontinue the offer and sale of Registrable Shares pursuant to the Registration Statement covering such Registrable Shares until receipt by the Holders of the copies of such supplemented or amended Prospectus and, if so directed by the Company, the Holders will deliver to the Company all copies, other than permanent file copies then in the possession of Holders, of the most recent Prospectus covering such Registrable Shares at the time of receipt of such notice.
(i) The Company shall use commercially reasonable efforts to cause the Registrable Shares included in any Registration Statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;listed or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq Global Market (or any other applicable Nasdaq market), if the Registrable Shares so qualify.
3.1.6 (j) Provided that each such Inspector executes a confidentiality agreement in form and substance reasonably acceptable to the Company, the Company shall make available for inspection by the Holders, any sole or lead managing Underwriter participating in any disposition pursuant to such Registration Statement, Holders’ Counsel and any attorney, accountant or other agent retained by the Holders, or any Underwriter (each, an “Inspector” and, collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company and any subsidiaries thereof as may be in existence at such time as shall be necessary, in the opinion of the Holders’ and such Underwriters’ respective counsel, to enable them to exercise their due diligence responsibility and to conduct a reasonable investigation within the meaning of the Securities Act, and cause the Company’s and any subsidiaries’ or officers, directors and employees, and the independent public accountants of the Company, to supply all information reasonably requested by any such Inspectors in connection with such Registration Statement.
(k) The Company shall obtain an opinion from its counsel and a “cold comfort” letter from its independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such Registration Statement, in each case dated the date of the Prospectus that is part of such Registration Statement (and if such registration involves an Underwritten Shelf Take-Down, dated the date of the closing under the underwriting agreement), in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the sole or lead managing Underwriter, if any, and to a Majority Interest of the Holders, and furnish to the Holders and to each Underwriter, if any, a copy of such opinion and letter addressed to the Holders (in the case of the opinion) and Underwriter (in the case of the opinion and the “cold comfort” letter).
(l) The Company shall provide a CUSIP number, registrar and transfer agent or warrant agent, as applicable, and registrar for all such the Registrable Securities no Shares included in any Registration Statement not later than the effective date of such Registration Statement.
(m) The Company shall enter into and perform customary agreements (including, if applicable, an underwriting agreement in customary form) and provide officers’ certificates and other customary closing documents;
3.1.7 advise each seller (n) The Company shall cooperate with the Holders and the sole or lead managing Underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Shares to be sold, and cause such Registrable SecuritiesShares to be issued in such denominations and registered in such names in accordance with the underwriting agreement prior to any sale of Registrable Shares to the Underwriters or, promptly after it shall receive notice or obtain knowledge thereofif not an Underwritten Shelf Take-Down, in accordance with the instructions of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 Holders at least five three (53) business days prior to any sale of Registrable Shares;
(o) The Company shall take all reasonable actions to ensure that any Free Writing Prospectus (as defined in Rule 405 of the filing of Securities Act) utilized in connection with any Registration Statement hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of a material fact or Prospectus or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(p) The Company and each Holder shall cooperate in connection with any amendment or supplement to such Registration Statement or Prospectus or any document that is filings required to be incorporated by reference into such Registration Statement or Prospectusmade with FINRA.
(q) The Company shall, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify during the Holders at any time period when a the Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, file all documents required to be filed with the Commission pursuant to the Exchange Act in accordance with the provisions of the happening Exchange Act and the rules and regulations promulgated thereunder.
(r) Upon the request of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior the Sellers and the Holders shall promptly furnish in writing to the release or disclosure of any Company such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to information regarding the Holders, the placement agent or sales agent, if any, plan of distribution of the Registrable Shares and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given other information as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration, and the Sellers and the Holders agree to do so as promptly as reasonably practicable.
Appears in 2 contracts
Samples: Registration Rights Agreement (Sun Communities Inc), Registration Rights Agreement (Sun Communities Inc)
Filings; Information. Whenever In connection with the registration of Registrable Securities pursuant to Section 2.1, Section 2.2 and Section 2.3 hereof, the Company is required will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of such securities, (ii) with respect to a Shelf Registration, until the earlier of the sale of all Registrable Securities thereunder and the fifth anniversary of the Closing Date (or if such Shelf Registration is filed or amended on or after the fourth anniversary of the Closing Date, then the earlier of the sale of all Registrable Securities thereunder and the second anniversary of the effective date of such Shelf Registration) (it being understood that if at any time all the Registrable Securities then permitted to be sold under such Shelf Registration pursuant to Section 2.3 have been sold but the Holders have the right to request the addition of additional Registrable Securities to the Shelf Registration in the future pursuant to Section 2.3, the Company may (at its option) either cause the registration statement to remain effective (notwithstanding the fact that all securities then registrable on such shelf registration statement shall have been sold) and file post-effective amendments when required to permit the sale of the additional Registrable Securities or prepare and file, and cause to become and remain effective, a new shelf registration statement to effect the registration of the additional Registrable Securities when required pursuant to Section 2.3); provided that if the Company shall furnish to the Selling Holder a certificate signed by the Company's Chairman, President or any Executive Vice-President or Vice-President stating that the Company's Board of Directors has determined in good faith that it would be detrimental or otherwise disadvantageous to the Company or its stockholders for such a registration statement to be filed as expeditiously as possible because the sale of Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the Commission such amendments and post-effective amendments public disclosure of which at the time would be materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a registration statement for a period of not more than 120 days; provided that during any 360-day period the Company shall use its reasonable best efforts to permit a period of at least 180 consecutive days during which the Company will make a registration statement available under this Agreement; and provided further that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statementwould otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financials as of the end of such supplements fiscal year, the Company may delay the effectiveness of such registration statement for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year. If the Company exercises its right to postpone the filing or effectiveness of a registration statement, the applicable Requesting Holders shall be entitled to withdraw their request for such Demand Registration and it shall not count as a Demand Registration.
(b) Anything in this Agreement to the Prospectuscontrary notwithstanding, as may it is understood and agreed that the Company shall not be requested by required to keep any shelf registration effective or useable for offers and sales of the Registrable Securities, file a post effective amendment to a shelf registration statement or prospectus supplement or to supplement or amend any registration statement, if the Company is then involved in discussions concerning, or otherwise engaged in, any material financing or investment, acquisition or divestiture transaction or other material business purpose if the Company determines in good faith that the making of such a filing, supplement or amendment at such time would interfere with such transaction or purpose. The Company shall promptly give the Holders or any Underwriter of Registrable Securities written notice of such postponement containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. Upon receipt by a Holder of Registrable Securities of notice of an event of the kind described in this Section 3.1(b), such Holder shall forthwith discontinue such Holder's disposition of Registrable Securities until such Holder's receipt of notice from the Company that such disposition may continue and of any supplemented or amended prospectus indicated in such notice. The Company shall use its reasonable best efforts to permit sales of Registrable Securities on such shelf registration statement for at least 180 days during any 360-day period. In the event the Company shall give notice of an event of the kind described in this Section 3.1(b), the Company shall extend the period during which the applicable registration statement shall be maintained effective as may be required provided in Section 3.1(a) hereof by the rules, regulations or instructions applicable number of days during the period from and including the date of the giving of such notice to the registration form used by date when the Company or by shall give notice to the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Selling Holders that such dispositions of such Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement may continue and shall have made available to the Prospectus;Selling Holders any such supplemented or amended prospectus.
3.1.3 (c) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(d) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (e) The Company will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.1(e), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(f) The Company will as promptly as is practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders will deliver to the Company all copies, other than permanent file copies then otherwise so subject;in the possession of Selling Holders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.1(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Selling Holders such supplemented or amended prospectus.
3.1.5 cause all (g) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions (including, without limitation, participation in road shows and investor conference calls) as are required in order to expedite or facilitate the sale of such Registrable Securities.
(h) At the request of any Underwriter in connection with an underwritten offering the Company will furnish (i) an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from the Company's independent public accountants covering such customary matters as the managing Underwriter may reasonably request.
(i) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post effective amendment.
(j) The Company shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (j) if (A) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) if either (1) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (A) or (B) such Holder of Registrable Securities requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; provided further, however, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(k) The Company shall cause the Registrable Securities included in any registration statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;, or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify.
3.1.6 (l) The Company shall provide a transfer agent or warrant agent, as applicable, and registrar CUSIP number for all such the Registrable Securities no included in any registration statement not later than the effective date of such Registration Statement;registration statement.
3.1.7 advise (m) The Company shall cooperate with each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of Selling Holder and each Underwriter participating in the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller disposition of such Registrable Securities or its counsel;and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.
3.1.9 notify (n) The Company shall during the Holders at any time period when a Prospectus relating to such Registration Statement the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;Exchange Act.
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the o) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if rules and regulations of the Registration involves Commission thereunder. The Company may require Selling Holders promptly to furnish in writing to the Registration Company such information regarding such Selling Holders, the plan of distribution of the Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of and other information as the Company may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Icg Holdings Canada Co /Co/), Registration Rights Agreement (Hicks Thomas O)
Filings; Information. Whenever In connection with the registration of Registrable Securities pursuant to Section 2.01, Section 2.02 and Section 2.03 hereof, the Company is required will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of such securities, (ii) with respect to the Shelf Registration, until the earlier of the sale of all Registrable Securities thereunder and the eighth anniversary of the Closing Date (it being understood that if at any time all the Registrable Securities then permitted to be sold under such Shelf Registration pursuant to Section 2.03 have been sold but the Holders have the right to request the addition of additional Registrable Securities to the Shelf Registration in the future pursuant to Section 2.03, the Company may (at its option) either cause the registration statement to remain effective (notwithstanding the fact that all securities then registrable on such shelf registration statement shall have been sold) and to file post-effective amendments when required to permit the sale of the additional Registrable Securities or prepare and file, and cause to become and remain effective, a new shelf registration statement to effect the registration of the additional Registrable Securities when required pursuant to Section 2.03); provided that if the Company shall furnish to the Selling Holder a certificate signed by the Company's Chairman, President or any Vice-President stating that the Company's Board of Directors has determined in good faith that it would be detrimental or otherwise disadvantageous to the Company or its shareholders for such a registration statement to be filed as expeditiously as possible because the sale of Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the Commission such amendments and post-effective amendments public disclosure of which at the time would be materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a registration statement for a period of not more than 120 days; provided that during any 360-day period the Company shall use its reasonable best efforts to permit a period of at least 120 consecutive days during which the Company will make a registration statement available under this Agreement; and provided further that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statementwould otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financials as of the end of such supplements fiscal year, the Company may delay the effectiveness of such registration statement for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year. If the Company exercises its right to postpone the filing or effectiveness of a registration statement, the applicable Requesting Holders shall be entitled to withdraw their request for such Demand Registration and it shall not count as a Demand Registration.
(b) Anything in this Agreement to the Prospectuscontrary notwithstanding, as may it is understood and agreed that the Company shall not be requested by required to keep any shelf registration effective or useable for offers and sales of the Registrable Securities, file a post effective amendment to a shelf registration statement or prospectus supplement or to supplement or amend any registration statement, if the Company is then involved in discussions concerning, or otherwise engaged in, any material financing or investment, acquisition or divestiture transaction or other material business purpose if the Company determines in good faith that the making of such a filing, supplement or amendment at such time would interfere with such transaction or purpose. The Company shall promptly give the Holders or any Underwriter of Registrable Securities written notice of such postponement containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. Upon receipt by a Holder of Registrable Securities of notice of an event of the kind described in this Section 3.01(b), such Holder shall forthwith discontinue such Holder's disposition of Registrable Securities until such Holder's receipt of notice from the Company that such disposition may continue and of any supplemented or amended prospectus indicated in such notice. The Company shall use its reasonable best efforts to permit sales of Registrable Securities on such shelf registration statement for at least 120 days during any 360-day period. In the event the Company shall give notice of an event of the kind described in this Section 3.01 (b), the Company shall extend the period during which the applicable registration statement shall be maintained effective as may be required provided in Section 3.01 (a) hereof by the rules, regulations or instructions applicable number of days during the period from and including the date of the giving of such notice to the registration form used by date when the Company or by shall give notice to the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Selling Holders that such dispositions of such Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement may continue and shall have made available to the Prospectus;Selling Holders any such supplemented or amended prospectus.
3.1.3 (c) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(d) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (e) The Company will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(e), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(f) The Company will as promptly as is practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders will deliver to the Company all copies, other than permanent file copies then otherwise so subject;in the possession of Selling Holders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Selling Holders such supplemented or amended prospectus.
3.1.5 cause all (g) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are required in order to expedite or facilitate the sale of such Registrable Securities.
(h) At the request of any Underwriter in connection with an underwritten offering the Company will furnish (i) an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from the Company's independent public accountants covering such customary matters as the managing Underwriter may reasonably request.
(i) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post effective amendment.
(j) The Company shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (j) if (A) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) if either (1) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (A) or (B) such Holder of Registrable Securities requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; provided further, however, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(k) The Company shall cause the Registrable Securities included in any registration statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;, or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify.
3.1.6 (l) The Company shall provide a transfer agent or warrant agent, as applicable, and registrar CUSIP number for all such the Registrable Securities no included in any registration statement not later than the effective date of such Registration Statement;registration statement.
3.1.7 advise (m) The Company shall cooperate with each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of Selling Holder and each Underwriter participating in the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller disposition of such Registrable Securities or its counsel;and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.
3.1.9 notify (n) The Company shall during the Holders at any time period when a Prospectus relating to such Registration Statement the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;Exchange Act.
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the o) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if rules and regulations of the Registration involves Commission thereunder. The Company may require Selling Holders promptly to furnish in writing to the Registration Company such information regarding such Selling Holders, the plan of distribution of the Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of and other information as the Company may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Rhythms Net Connections Inc), Registration Rights Agreement (Hicks Thomas O)
Filings; Information. Whenever the Company is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1, the Company shall will use its best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible, prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such Registrable Securities registration statement on Form S-3 and use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Act or otherwise), and the Company will as expeditiously as possible prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the time periods prescribed by Section 2.1(b) and comply with the provisions of the Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission during such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold period in accordance with the intended plan methods of distribution disposition by the Investor set forth in such Registration Statement or supplement to the Prospectus;Statement.
3.1.3 (b) The Company will, prior to filing a Registration Statement or prospectus, prospectus or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge to the Underwriters, if any, Investor and one firm of counsel representing the Holders of Registrable Securities included in such Registration, and such Holders’ legal counselInvestor, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by such parties, and thereafter furnish to the Investor and its counsel for their review such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities.
(c) After the filing of the Registration Statement, the Company will promptly notify the Investor of any stop order issued or threatened by the SEC in connection therewith and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Company will use its best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be (C) consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (e) The Company will immediately notify the Investor upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities; (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agent, as applicable, and registrar for all such Registrable Securities no later than any other federal or state governmental authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result which makes any statement made in the Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of which any changes in the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney related prospectus or accountant retained by such Holders or Underwriter to participate, at each such person’s own expensedocuments so that, in the preparation case of the Registration Statement, 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 the case of the related 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 were made, not misleading; and (vi) the Company's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
(f) The Company will enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (the Investor may, at its option, require that any or all of the representations, warranties and covenants of the Company also be made to and for the benefit of the Investor).
(g) The Company will make available to the Investor (and will deliver to Investor's counsel), subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such Registration Statement. Records which the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; providedprovided that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory fiduciary obligation to the Company, prior ) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such information is made generally available to the release or public. The Investor further agrees that it will, upon learning that disclosure of any such information;
3.1.11 obtain Records is sought in a “comfort” letter from court of competent jurisdiction, give notice to the Company and allow the Company’s independent registered public accountants in , at its expense, to undertake appropriate action to prevent disclosure of the event Records deemed confidential.
(h) The Company will furnish to the Investor a signed counterpart, addressed to the Investor, of an Underwritten Registration, opinion or opinions of counsel to the Company in customary form and covering such matters of the type customarily covered by “comfort” letters opinions, as the managing Underwriter may Investor therefor reasonably request, requests.
(i) The Company will otherwise comply with all applicable rules and may be found reasonably satisfactory to a majority-in-interest regulations of the participating Holders;SEC, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
3.1.12 on the date the (j) The Company will appoint a transfer agent and registrar for all such Registrable Securities are delivered for sale pursuant to covered by such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after Statement not later than the effective date of such Registration Statement. The Company may require the Registration Statement which satisfies Investor to promptly furnish in writing to the provisions of Section 11(a) Company such information regarding the distribution of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter legally required in any Underwritten Offering; and
3.1.16 otherwiseconnection with such registration including, in good faithwithout limitation, cooperate reasonably with, and take all such customary actions information as may reasonably be requested by the Holders, SEC or the NASD. The Investor agrees to provide such information requested in connection with such Registrationregistration within ten (10) business days after receiving such written request and the Company shall not be responsible for (and the penalties specified in Section 2.1(c) shall not apply in respect of) any delays in obtaining or maintaining the effectiveness of the Registration Statement caused by the Investor's failure to timely provide such information. The Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(e) hereof, the Investor will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until the Investor's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof, and, if so directed by the Company, the Investor will deliver to the Company all copies, other than permanent file copies then in the Investor's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when the Company shall make available to the Investor a prospectus supplemented or amended to conform with the requirements of Section 3.1(e) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Zila Inc), Registration Rights Agreement (Zila Inc)
Filings; Information. Whenever the Company is required to effect the registration of -------------------- Purchaser requests that any Registrable Securities be registered pursuant to Section 22.02 hereof, the Company shall will use its best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with for a period of not less than 90 days; provided, however, -------- ------- that if the Commission such amendments and post-effective amendments Company shall furnish to the Registration Statement, and such supplements Purchaser a certificate signed by its Chief Executive Officer or Chief Financial Officer stating that in his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by its shareholders for such a registration statement to be filed, or, in the Securities Act or rules and regulations thereunder case of an effective registration statement, for sales to keep be effected thereunder, the Registration Statement effective until all Registrable Securities covered by Company shall have a period of not more than 120 days within which to file such Registration Statement are sold registration statement measured from the date of receipt of the request in accordance with Section 2.02 or, in the intended plan case of distribution set forth an effective registration statement, the Company shall be entitled to require the Purchaser to refrain from selling Registrable Securities under such registration statement for a period of up to 120 days. If the Company furnishes a notice under this paragraph at a time when a registration statement filed pursuant to this Agreement is effective, the Company shall extend the period during which such registration statement shall be maintained effective as provided in such Registration Statement or supplement this Section 3.01(a) hereof by the number of days during the period from and including the date of the giving of notice under this paragraph to the Prospectus;date when sales under the registration statement may recommence.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersPurchaser and each managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Purchaser and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Holders of Registrable Securities included in Purchaser or such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, the Company will promptly notify the Purchaser of any stop order issued or, to the knowledge of the Company, threatened to be issued by the Commission and take all necessary actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior (d) The Company will endeavor to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Purchaser reasonably (in light of their the Purchaser's intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsrequests; provided, however, that the Company shall will not be required to -------- ------- (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action but for this paragraph (d), (ii) subject itself to which it would be subject to general service of process or taxation in any such jurisdiction where it or (iii) consent to service of process in any such jurisdiction.
(e) The Company shall, as promptly as practicable, notify the Purchaser, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading, and as promptly as practicable make available to the Purchaser and to the Underwriters any such supplement or amendment. The Purchaser agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in the preceding sentence, the Purchaser will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Purchaser will deliver to the Company all copies, other than permanent file copies then otherwise so subject;in the Purchaser's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Purchaser such supplemented or amended prospectus.
3.1.5 (f) The Company will enter into customary agreements (including an underwriting agreement in customary form and satisfactory in form and substance to the Company in its reasonable judgment) and take such other actions as are reasonably required in order to expedite or facilitate the sale of such Registrable Securities.
(g) The Company will furnish to the Purchaser and to each managing Underwriter, if any, a signed counterpart, addressed to the Purchaser and each Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters delivered to such parties.
(h) The Company will make generally available to its securityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will use its best efforts to cause all such Registrable Securities to be listed on each securities exchange or automated exchange, if any, and the National Association of Securities Dealers' interdealer quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than . The Company may require the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, Purchaser promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior furnish in writing to the filing of any Registration Statement or Prospectus or any amendment or supplement to Company such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify information regarding the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders)Purchaser, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation plan of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure distribution of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing and other information as the Company for the purposes of such Registration, addressed may from time to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may time reasonably request and or as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ren Corp Usa), Stock Purchase Agreement (Cobe Laboratories Inc)
Filings; Information. Whenever the Company is required to effect In connection with the registration of any Registrable Securities Shares pursuant to Section 2, the 2.01 hereof:
(a) The Company shall will use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such the filed Registration Statement to become effective and remain effective until all Registrable Securities of Holders’ shares of Common Stock covered by such the Registration Statement have are no longer Registrable Shares (the “Effectiveness Period”).
(b) The Company will furnish to the Holders draft copies of any Registration Statement or Prospectus or any amendments or supplements thereto proposed to be filed after the date of this Agreement at least five (5) days prior to such filing.
(c) The Company will notify the Holders, as soon as practicable after notice thereof is received by the Company, (i) when the Registration Statement or any amendment thereto has been sold;filed or becomes effective and the Prospectus or any amendment or supplement to the Prospectus has been filed, (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, and (iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Shares for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
3.1.2 (d) After the filing of the Registration Statement, the Company will promptly notify the Holders of any stop order issued, or, to the Company’s knowledge, threatened to be issued, by the Commission and use its commercially reasonable efforts to prevent the entry of such stop order or to remove it if entered.
(e) The Company will prepare and file with the Commission such amendments and amendments, post-effective amendments to the Registration Statement, and such supplements to such Registration Statement and the Prospectus, Prospectus used in connection therewith as may be requested necessary to keep such Registration Statement effective for the Effectiveness Period, cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Holders or any Underwriter Securities Act, and comply with the provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold (to the extent such compliance obligations fall on the Company) during such period in accordance with the intended plan methods of distribution disposition by the Holders set forth in such Registration Statement or supplement Statement.
(f) The Company will furnish to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriterseach Holder and each Underwriter, if any, and the Holders without charge, such number of Registrable Securities included in such Registration, and such Holders’ legal counsel, conformed copies of such Registration Statement as proposed to be filedStatement, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein)thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus)) and any amendments or supplements thereto, and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Shares.
3.1.4 prior to any public offering of Registrable Securities, (g) The Company will use its best commercially reasonable efforts to qualify (ior exempt) register or qualify the Registrable Securities covered by the Registration Statement Shares for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in or Underwriter, if any, reasonably request; keep each such Registration Statement registration or qualification (in light of their intended plan of distributionor exemption therefrom) may request, and (ii) take such action necessary to cause such Registrable Securities covered by effective during the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company Effectiveness Period; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Holder to consummate the disposition of the Registrable Shares owned by such Registrable Securities Holder in such jurisdictions; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(g), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(h) The Company will as promptly as practicable notify the Holders and the sole or lead managing Underwriter, if any, at any time when a Prospectus relating to the sale of the Registrable Shares is not then otherwise required by law to be delivered under the Securities Act, of the occurrence of any event requiring the preparation of a supplement or amendment to such Prospectus so subject;
3.1.5 cause all that, as thereafter delivered to the purchasers of such Registrable Securities Shares, such Prospectus will not contain an 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 were made, not misleading and promptly make available to the Holders and the sole or lead managing Underwriter, if any, any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, the Holders will forthwith discontinue the offer and sale of Registrable Shares pursuant to the Registration Statement covering such Registrable Shares until receipt by the Holders of the copies of such supplemented or amended Prospectus and, if so directed by the Company, the Holders will deliver to the Company all copies, other than permanent file copies then in the possession of Holders, of the most recent Prospectus covering such Registrable Shares at the time of receipt of such notice.
(i) The Company shall use commercially reasonable efforts to cause the Registrable Shares included in any Registration Statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;listed or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq Global Market (or any other applicable Nasdaq market), if the Registrable Shares so qualify.
3.1.6 (j) Provided that each Inspector executes a confidentiality agreement in form and substance reasonably acceptable to the Company, the Company shall make available for inspection by the Holders, any sole or lead managing Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Holders, or any Underwriter (each, an “Inspector” and, collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company and any subsidiaries thereof as may be in existence at such time as shall be necessary, in the opinion of the Holders’ and such Underwriters’ respective counsel, to enable them to exercise their due diligence responsibility and to conduct a reasonable investigation within the meaning of the Securities Act, and cause the Company’s and any subsidiaries’ or officers, directors and employees, and the independent public accountants of the Company, to supply all information reasonably requested by any such Inspectors in connection with such Registration Statement.
(k) The Company shall obtain an opinion from its counsel and a “cold comfort” letter from its independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such Registration Statement, in each case dated the date of the Prospectus that is part of such Registration Statement (and if such registration involves an Underwritten Shelf Take-Down, dated the date of the closing under the underwriting agreement), in customary form and covering such matters as are customarily covered by such opinions and “cold comfort” letters delivered to underwriters in underwritten public offerings, which opinion and letter shall be reasonably satisfactory to the sole or lead managing Underwriter, if any, and to a Majority Interest of the Holders, and furnish to the Holders and to each Underwriter, if any, a copy of such opinion and letter addressed to the Holders (in the case of the opinion) and Underwriter (in the case of the opinion and the “cold comfort” letter).
(l) The Company shall provide a CUSIP number, registrar and transfer agent or warrant agent, as applicable, and registrar for all such the Registrable Securities no Shares included in any Registration Statement not later than the effective date of such Registration Statement;.
3.1.7 advise each seller (m) The Company shall enter into and perform customary agreements (including, if applicable, an underwriting agreement in customary form) and provide officers’ certificates and other customary closing documents.
(n) The Company shall cooperate with the Holders and the sole or lead managing Underwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Shares to be sold, and cause such Registrable SecuritiesShares to be issued in such denominations and registered in such names in accordance with the underwriting agreement prior to any sale of Registrable Shares to the Underwriters or, promptly after it shall receive notice or obtain knowledge thereofif not an Underwritten Shelf Take-Down, in accordance with the instructions of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 Holders at least five three (53) business days prior to any sale of Registrable Shares.
(o) The Company shall take all reasonable actions to ensure that any Free Writing Prospectus (as defined in Rule 405 of the filing Securities Act) utilized in connection with any registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(p) The Company and each Holder shall cooperate in connection with any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is filings required to be incorporated by reference into such Registration Statement or Prospectusmade with FINRA.
(q) The Company shall, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify during the Holders at any time period when a the Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, file all documents required to be filed with the Commission pursuant to the Exchange Act in accordance with the provisions of the happening Exchange Act and the rules and regulations promulgated thereunder.
(r) Upon the request of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior each Holder shall promptly furnish in writing to the release or disclosure Company such information regarding such Holder, the plan of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters distribution of the type customarily covered by “comfort” letters Registrable Shares and other information as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration, and the Holders shall do so as promptly as reasonably practicable.
Appears in 2 contracts
Samples: Registration Rights Agreement (Sun Communities Inc), Registration Rights Agreement (Sun Communities Inc)
Filings; Information. Whenever the Company is required to effect the registration Registration of any Registrable Securities pursuant to Section 2Article II, the Company shall use its reasonable best efforts to effect the Registration to permit the registration and sale of such Registrable Securities in accordance with the intended plan of distribution thereof thereof, and pursuant thereto the Company shall use reasonable best efforts to, as expeditiously as practicable, and in connection with any such requestpossible:
3.1.1 (a) prepare and file with the Commission SEC as soon as practicable a Registration Statement with respect to such Registrable Securities and use its commercially reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 (b) prepare and file with the Commission SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the Holders of Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 (c) prior to filing a Registration Statement or prospectusProspectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any of such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 (d) prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, reasonably request and (ii) take such action reasonably necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 (e) cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 (f) provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 (g) advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission SEC suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 (h) at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 (i) notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 2.4.4 hereof;
3.1.10 (j) permit a representative of the Holders (such representative to be selected by a majority majority-in-interest of the participating Holders), the UnderwritersUnderwriter(s), if any, and any attorney or accountant retained by such Holders or Underwriter Underwriter(s) to participate, at each such personPerson’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives representative or Underwriters enter Underwriter enters into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 (k) obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating HoldersHolders and the applicable placement agent or sales agent, if any;
3.1.12 (l) on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinionopinion and negative assurance letter, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the participating Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in majority-in-interest of the participating Holders;
3.1.13 (m) in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters Underwriter of such offeringUnderwritten Offering;
3.1.14 (n) make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the CommissionSEC);
3.1.15 (o) if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,00050,000,000, use its reasonable best efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter Underwriter(s) in any Underwritten Offering; and;
3.1.16 (p) otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holdersparticipating Holders and the placement agent or sales agent, if any,, in connection with such Registration; and
(q) upon request of a Holder, the Company shall (i) authorize the Company’s transfer agent to remove any legend on share certificates of such Holder’s Common Stock restricting further transfer (or any similar restriction in book entry positions of such Holder) if such restrictions are no longer required by the Securities Act or any applicable state securities laws or any agreement with the Company to which such Holder is a party, including if such shares subject to such a restriction have been sold on a Registration Statement, (ii) request the Company’s transfer agent to issue in lieu thereof shares of Common Stock without such restrictions to the Holder upon, as applicable, surrender of any stock certificates evidencing such shares of Common Stock, or to update the applicable book entry position of such Holder so that it no longer is subject to such a restriction, and (iii) use reasonable best efforts to cooperate with such Holder to have such Holder’s shares of Common Stock transferred into a book-entry position at The Depository Trust Company, in each case, subject to delivery of customary documentation, including any documentation required by such restrictive legend or book-entry notation.
Appears in 2 contracts
Samples: Registration Rights Agreement (Faraday Future Intelligent Electric Inc.), Registration Rights Agreement (Property Solutions Acquisition Corp.)
Filings; Information. Whenever the The Company is required to will effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the and sale of such Registrable Securities in accordance with the intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) The Company shall (i) prepare and file with the Commission as soon as practicable SEC a Registration Statement on Form S-3 (if use of such form is then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company then qualifies, that counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities and Securities); (ii) use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Securities Act or otherwise); (iii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the time period prescribed by Section 1.1(b); and (iv) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by the Investor set forth in such Registration Statement.
(b) The Company shall file all necessary amendments to the Registration Statement in order to effectuate the purpose of this Agreement, the Investment Agreement, and the Warrant.
(c) If so requested by the managing underwriters, if any, or the holders of a majority in aggregate principal amount of the Registrable Securities being sold in connection with the filing of a Registration Statement under the Securities Act for the offering on a continuous or delayed basis in the future of all of the Registrable Securities (a "Shelf Registration"), the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such holders agree should be included therein, and (ii) make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 2.1(c)(ii) that would, in the opinion of counsel for the Company, violate applicable law.
(d) In connection with the filing of a Shelf Registration, the Company shall enter into such agreements and take all such other reasonable actions in connection therewith (including those reasonably requested by the managing underwriters, if any, or the holders of a majority in aggregate principal amount of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, the Company shall (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company (including with respect to businesses or assets acquired or to be acquired by the Company), 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, and confirm such representations and warranties if and when requested; (ii) if an underwriting agreement is entered into, it shall contain indemnification provision and procedures no less favorable to the selling holders of such Registrable Securities and the underwriters, if any, than those set forth herein (or such other provisions and procedures acceptable to the holders of a majority in aggregate principal amount of Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission managing underwriters, if any); and (iii) deliver such amendments documents and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, certificates as may be reasonably requested by the Holders or any Underwriter holders of a majority in aggregate principal amount of the Registrable Securities being sold, their counsel and the managing underwriters, if any, to evidence the continued validity of their representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or as may be required other agreement entered into by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Company.
3.1.3 (e) Five (5) Trading Days prior to filing a the Registration Statement or prospectus, or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge the Company shall deliver to the UnderwritersInvestor and one firm of counsel representing the Investor, if any, and in accordance with the Holders notice provisions of Registrable Securities included in such Registration, and such Holders’ legal counselSection 4.8, copies of such the Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the Investor and such counsel, and thereafter deliver to the Investor and such counsel, in accordance with the notice provisions of Section 4.8, such number of copies of the Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such the Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities.
(f) The Company shall deliver, in accordance with the notice provisions of Section 4.8, to each seller of Registrable Securities owned covered by the Registration Statement such Holders;
3.1.4 prior number of conformed copies of the Registration Statement and of each amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), such number of copies of the prospectus contained in the Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to any public offering of such seller's Registrable Securities, and such other documents, as such seller may reasonably request to facilitate the disposition of its Registrable Securities.
(g) After the filing of the Registration Statement, the Company shall promptly notify the Investor of any stop order issued or threatened by the SEC in connection therewith and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(h) The Company shall use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, however, that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (h), subject itself to taxation in any such jurisdiction, or take any action to which it would be consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (i) The Company shall immediately notify the Investor upon the occurrence of any of the following events in respect of the Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities: (i) receipt of any request by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agentany other federal or state governmental authority for additional information, as applicable, and registrar for all such Registrable Securities no later than amendments or supplements to the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice Statement or obtain knowledge thereof, of related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result that makes any statement made in the Registration Statement 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 any changes in the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney related prospectus or accountant retained by such Holders or Underwriter to participate, at each such person’s own expensedocuments so that, in the preparation case of the Registration Statement, 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 the case of the related 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 were made, not misleading; and (v) the Company's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate, and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
(j) The Company shall enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (whereupon the Investor may, at its option, require that any or all of the representations, warranties and covenants of the Company also be made to and for the benefit of the Investor).
(k) The Company shall make available to the Investor (and will deliver to Investor's counsel), subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or its auditors concerning the Registration Statement and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with the RegistrationRegistration Statement. Records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the Registration Statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided, however, that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such representatives request or Underwriters enter into requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided, further, that if failing the entry of a confidentiality agreementprotective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records that counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company) shall be deemed confidential and shall not be used by it as the basis for any market transactions in form the securities of the Company or its affiliates unless and substance until such information is made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(l) To the extent required by law or reasonably satisfactory necessary to effect a sale of Registrable Securities in accordance with prevailing business practices at the time of any sale of Registrable Securities pursuant to a Registration Statement, the Company shall deliver to the Investor a signed counterpart, addressed to the Investor, of (1) an opinion or opinions of counsel to the Company, prior to the release and (2) a comfort letter or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationpublicaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the managing Underwriter case may be, as the Investor therefor reasonably request, requests.
(m) The Company shall otherwise comply with all applicable rules and may be found reasonably satisfactory to a majority-in-interest regulations of the participating Holders;SEC, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
3.1.12 on the date (n) The Company shall appoint a transfer agent and registrar for all of the Registrable Securities are delivered for sale pursuant to covered by such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after Statement not later than the effective date of such Registration Statement.
(o) The Company may require the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds Investor to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives of the Company to participate in customary “road show” presentations that such information as may be reasonably requested by the Underwriter legally required in any Underwritten Offering; and
3.1.16 otherwiseconnection with such registration including, in good faithwithout limitation, cooperate reasonably with, and take all such customary actions information as may reasonably be requested by the Holders, SEC or the National Association of Securities Dealers. The Investor agrees to provide such information requested in connection with such Registrationregistration within ten (10) business days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of the Registration Statement caused by the Investor's failure to timely provide such information.
Appears in 2 contracts
Samples: Private Equity Line Agreement (Cytogen Corp), Private Equity Line Agreement (Cytogen Corp)
Filings; Information. Whenever In connection with a Demand Registration pursuant to Section 2.01 hereof, the Company is required Corporation will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Corporation will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Corporation then qualifies and which counsel for the Corporation shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by for such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments period, not to the Registration Statement, and such supplements to the Prospectusexceed 60 days, as may be requested by reasonably necessary to effect the Holders or sale of such securities; and provided that if (i) the effective date of any Underwriter registration statement filed pursuant to a Demand Registration would otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of Registrable Securities or as may be required by the rulesCorporation's fiscal year, regulations or instructions applicable to the registration form used by the Company or by and (ii) the Securities Act or rules and regulations thereunder requires the Corporation to keep include audited financials as of the Registration Statement effective until all Registrable Securities covered by end of such Registration Statement are sold in accordance with fiscal year, the intended plan Corporation may delay the effectiveness of distribution set forth in such Registration Statement or supplement registration statement for such period as is reasonably necessary to the Prospectus;include therein its audited financial statements for such fiscal year.
3.1.3 (b) The Corporation will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(c) After the filing of the registration statement, the Corporation will promptly notify the Selling Holders of any stop order issued or, to the Corporation's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Corporation will use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, provided that the Company shall Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(d), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Corporation will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it shall receive make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice from the Corporation of the occurrence of any event of the kind described in the preceding sentence, the Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Corporation, the Selling Holders will deliver to the Corporation all copies, other than permanent file and then in the possession of Selling Holders, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order receipt of such notice. In the event the Corporation shall give such notice, the Corporation shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the Commission suspending number of days during the effectiveness period from and including the date of the giving of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior notice to the filing of any Registration Statement date when the Corporation shall make available to the Selling Holders such supplemented or Prospectus amended prospectus.
(f) The Corporation will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller facilitate the sale of such Registrable Securities or its counsel;Securities.
3.1.9 notify (g) At the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening request of any event as a result Underwriter in connection with an underwritten offering, the Corporation will furnish (i) an opinion of which the Prospectus included in such Registration Statementcounsel, as then in effect, includes a Misstatement, and then addressed to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, covering such customary matters as the managing Underwriter may reasonably request and any attorney (ii) a comfort letter or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s Corporation's independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such customary matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 (h) The Corporation will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, i) The Corporation will use its commercially reasonable efforts to make available senior executives of cause all such Registrable Securities to be listed on each securities exchange or quoted on each inter-dealer quotation system on which the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationCommon Stock is then listed or quoted.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Signature Eyewear Inc), Stock Purchase Agreement (Signature Eyewear Inc)
Filings; Information. Whenever Subject to the Company is required limitations set forth in Article V, whenever any Shareholder (the “Registering Shareholder”) requests that any Registrable Securities be registered pursuant to Section 5.1, Section 5.2 or Section 5.4, the Corporation will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is practicable, and in connection with any such request:
3.1.1 (a) The Corporation will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Corporation then qualifies and that counsel for the Corporation deems appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with for a period of not less than 180 days (or any longer period of time required under this Agreement); provided, however, that if the Commission such amendments and post-effective amendments Corporation furnishes to the Registration StatementRegistering Shareholder a certificate signed by the Corporation’s Chief Executive Officer, and such supplements President or any Vice President stating that in his good faith judgment it would be detrimental or otherwise disadvantageous to the ProspectusCorporation or its Shareholders for such a registration statement to be filed as expeditiously as possible, as may the Corporation will be requested by entitled to postpone the Holders or any Underwriter filing of Registrable Securities or as may be required by such registration statement for a reasonable period of time following the rules, regulations or instructions applicable to date on which the Corporation receives the Registering Shareholder’s request for registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with Section 5.1 or Section 5.4, but the intended plan aggregate of distribution set forth in such Registration Statement or supplement to periods of time shall not exceed 90 days during any 12-month period unless the Prospectus;Corporation invokes its rights under Section 5.1(d).
3.1.3 (b) The Corporation will, if requested by a Registering Shareholder, at least five Business Days prior to filing a Registration Statement such registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the UnderwritersRegistering Shareholder, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed documents, which documents will be subject to the review of the Registering Shareholder and the applicable Underwriters, and the Corporation will not file any registration statement or any amendment thereto, or any prospectus or any supplement thereto (excluding any documents which, upon filing, would be incorporated or deemed to be filedincorporated by reference therein) to which the Registering Shareholder or the managing Underwriter, if any, may reasonably object on a timely basis; and thereafter the Corporation will furnish to the Registering Shareholder and each such Underwriter, if any, such number of copies of such registration statement and any amendment and any supplement to such Registration Statement registration statement (in each case including all exhibits thereto to such registration statement and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents any amendment or supplement thereto as the Underwriters and the Holders of Registrable Securities included in Registering Shareholder or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities. Notwithstanding the foregoing, no Registering Shareholder shall be under any obligation to review or comment upon any registration statement or prospectus or any amendments or supplements thereto, except to the extent related to Shareholder-Supplied Information supplied by or on behalf of such Registering Shareholder.
(c) The Corporation shall promptly take such action as may be necessary so that (i) each registration statement and any amendment thereto and the prospectus forming a part thereof and any amendment or supplement thereto (and each report or other document incorporated therein by reference in each case) complies in all material respects with the Securities Act and the Exchange Act and the respective rules and regulations thereunder, as in effect at any relevant time, (ii) each registration statements and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (iii) each prospectus forming a part of any registration statement, and any amendment or supplement to such prospectus, in the form delivered to purchasers of the Registrable Securities owned does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that nothing in this Agreement will impose liability or responsibility upon the Corporation to the extent related to Shareholder-Supplied Information used in a registration statement, prospectus or any amendment or supplement thereto substantially in the form provided or approved by the Shareholder supplying the Shareholder Supplied Information. After the filing of the registration statement, the Corporation will promptly notify the Registering Shareholder of any stop order issued or, to the Corporation’s knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior (d) The Corporation will endeavor to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsRegistering Shareholder reasonably requests; provided, however, that the Company shall Corporation will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection (d), (ii) subject itself to taxation in any such jurisdiction, or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Corporation will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify the Registering Shareholder at any time when a prospectus relating to the sale of the Registrable Securities is required by Law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated in such prospectus or necessary to make the statements in such prospectus, in the light of the circumstances under which they were made, not misleading and promptly after it shall receive make available to the Registering Shareholder and to the Underwriters any such supplement or amendment. The Registering Shareholder agrees that, upon receipt of any notice from the Corporation of the occurrence of any event of the kind described in the preceding sentence, the Registering Shareholder will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Registering Shareholder and the Underwriters of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Corporation, the Registering Shareholder will deliver to the Corporation all copies, other than permanent file copies then in the Registering Shareholder’s possession, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order receipt of such notice. If the Corporation gives such notice, the Corporation will extend the period during which such registration statement will be continued effective as provided in Section 5.1(a) by the Commission suspending number of days during the effectiveness period from and including the date of the giving of such Registration Statement notice to the date on which the Corporation makes available to the Registering Shareholder such supplemented or amended prospectus.
(f) The Corporation will enter into an underwriting agreement in customary form and take such other actions as are reasonably required in order to expedite or facilitate the initiation or threatening sale of any proceeding for such purpose and promptly Registrable Securities.
(g) The Corporation will use its reasonable best efforts to prevent the issuance furnish to each Registering Shareholder and to each Underwriter a signed counterpart, addressed to each such Registering Shareholder or such Underwriter, of any stop order (i) an opinion or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior opinions of counsel to the filing of any Registration Statement Corporation and (ii) a comfort letter or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the CompanyCorporation’s independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the Registering Shareholder or the managing Underwriter may reasonably request. If the Corporation receives any such opinions or comfort letters, the Corporation will furnish them to each Registering Shareholder and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registrationeach Underwriter, addressed to the Holders, the placement agent or sales agent, if anyeach Underwriter, and the Corporation will use its reasonable efforts to cause any such opinions and comfort letters to also be addressed to each Registering Shareholder.
(h) The Corporation will cooperate with the Registering Shareholders and the managing Underwriters, if any, covering to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and enable the Registrable Securities to be in such legal matters with respect denominations and registered in such names as the managing Underwriters, if any, may request at least two Business Days prior to any sale of Registrable Securities to the Registration Underwriters.
(i) The Corporation will make available for inspection by a representative of the Registering Shareholders, any Underwriter participating in respect any disposition of which Registrable Securities and any attorney or accountant retained by the Registering Shareholders or Underwriter, all financial and other records, pertinent corporate documents and properties of the Corporation and its Subsidiaries, and cause the officers, directors and employees of the Corporation and its Subsidiaries to supply all information reasonably requested by any such opinion representative, underwriter, attorney or accountant in connection with such registration statement; provided, however, that any records, information or documents that are designated by the Corporation in writing as confidential at the time of delivery of such records, information or documents will be kept confidential by those Persons unless (i) those records, information or documents are in the public domain or otherwise publicly available, (ii) disclosure of those records, information or documents is being given as the Holders, placement agent, sales agentrequired by court or administrative order or is necessary to respond to inquiries of regulatory authorities, or Underwriter may reasonably request and as are customarily included (iii) disclosure of those records, information or documents, in the opinion of counsel to such opinions and negative assurance lettersPerson, and may be found reasonably satisfactory is otherwise required by Law (including, without limitation, pursuant to a majority in interest the requirements of the participating Holders;Securities Act).
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 (j) The Corporation will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, k) The Corporation will use its reasonable best efforts to make available senior executives of cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company Corporation are then listed or, if not so listed, on a national securities exchange.
(l) The Corporation will use its reasonable best efforts to cause its directors, officers and other appropriate employees to participate in customary “road show” any presentations that may be regarding any Public Offering reasonably requested by the Registering Shareholders or the managing Underwriter or Underwriters participating in any Underwritten Offering; andthe disposition of those Registrable Securities.
3.1.16 otherwise(m) The Corporation may require the Registering Shareholder to promptly furnish in writing to the Corporation such information regarding the Registering Shareholder, in good faith, cooperate the plan of distribution of the Registrable Securities and other information as the Corporation may from time to time reasonably with, and take such customary actions request or as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 2 contracts
Samples: Shareholders Agreement (Regional Management Corp.), Shareholders Agreement (Regional Management Corp.)
Filings; Information. Whenever FSEP VI (on behalf of the Company is required to effect FS Stockholders) or Xxxx (on behalf of the registration of Xxxx Stockholders) requests that any Registrable Securities be registered pursuant to Section 22.1 or Section 2.2, the Company shall use its reasonable best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company shall, subject to Section 2.1(d) or Section 2.2(d), as applicable, as expeditiously as practicable prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such on any form for which the Company then qualifies and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such filed registration statement to be declared effective as expeditiously as practicable thereafter, and use reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by the earlier of (i) 90 days from the date such Registration Statement have was declared effective or (ii) the date on which the sale of Registrable Securities has been sold;completed. If the Company receives multiple requests for registration in accordance with this Agreement, then, except as provided in Section 2.1(a) or Section 2.2(a), such requests shall be given priority based upon the order in which they were received.
3.1.2 prepare and file with the Commission such amendments and post-effective amendments (b) The Company shall, prior to the filing any Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to each Selling Holder and one counsel representing all the UnderwritersSelling Holders and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counselRegistration Statement, copies of each such Registration Statement document as proposed to be filed, together with exhibits thereto, which documents, in the case of a Demand Registration or S-3 Registration, will be subject to review and comment by one counsel representing all the Selling Holders (and the Company will make such changes and additions thereto as reasonably requested), and thereafter furnish to each Selling Holder, such counsel and Underwriter, if any, such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder pursuant to such Registration Statement.
3.1.4 prior to any public offering (c) After the filing of the Registration Statement, the Company shall promptly notify each Selling Holder of Registrable Securities, Securities covered by such Registration Statement of any stop order issued or threatened by the SEC and promptly take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder’s intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, however, that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is would not then otherwise so subject;be required to qualify but for this paragraph (d).
3.1.5 cause all such Registrable Securities to be listed on (e) The Company shall immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then thereafter delivered to the purchasers of such Registrable Securities or otherwise used in effectconnection with the sale thereof, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative prospectus will comply with the requirements of the Holders (such representative Securities Act and the rules and regulations thereunder and will not contain an untrue statement of a material fact or omit to state any material fact required to be selected by a majority stated therein or necessary to make the statements therein not misleading and promptly make available to each Selling Holder copies of any such supplement or amendment.
(f) The Company shall enter into customary agreements (including, if applicable, an underwriting agreement and lock-up agreement in customary forms) and take such other actions as are reasonably required in order to expedite or facilitate the participating Holders), the Underwritersdisposition of such Registrable Securities.
(g) The Company shall promptly deliver to each Selling Holder of such Registrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all written correspondence between the SEC and any attorney the Company, its counsel or accountant retained by such Holders or Underwriter auditors with respect to participate, at each such person’s own expensethe Registration Statement (or, in the preparation case of substantive unwritten correspondence, a description thereof) and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the “Inspectors”), all pertinent financial and other records, corporate documents and properties of the Registration StatementCompany (collectively, the “Records”), subject to each Selling Holder, on behalf of itself and its agents, entering into a customary confidentiality agreement in a form reasonably acceptable to the Company, and to restrictions imposed by any governmental authority governing access to classified information, as shall be reasonably necessary to enable them to conduct a reasonable due diligence investigation, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such Registration Statement. Notwithstanding the Registration; providedforegoing, records that such representatives or Underwriters enter into a confidentiality agreementthe Company determines, in form good faith, to be confidential and substance reasonably satisfactory which it notifies the Inspectors are confidential or that the provision of such records would forfeit attorney-client privilege shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) to the extent it is required by a court or administrative order or other legal process or by applicable law; provided that each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of such Records is sought pursuant to clause (ii), give notice to the Company and allow the Company, prior at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential. Each Selling Holder of such Registrable Securities agrees that information obtained by it solely as a result of such inspections shall be deemed confidential and shall not be used by it or its agents as the basis for any transactions in the securities of the Company or its Affiliates unless and until such is made generally available to the release or disclosure of any such information;public.
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form (h) The Company shall otherwise use reasonable best efforts to comply with all applicable rules and covering such matters regulations of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably requestSEC, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(i) The Company shall use reasonable best efforts to cause all such Registrable Securities to be listed on each national securities exchange or any successor rule promulgated thereafter automated quotation system on which similar securities issued by the CommissionCompany are then traded, listed or quoted (if any);.
3.1.15 if the Registration involves the Registration (j) The Company may require each Selling Holder of Registrable Securities involving gross proceeds to promptly furnish in excess writing to the Company such information regarding the distribution of $25,000,000the Registrable Securities and the Selling Holder as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration.
(k) The Chairman of the Board of Directors of the Company, use its reasonable efforts to make available senior executives the Chief Executive Officer of the Company and other members of the management of the Company shall reasonably cooperate in any offering of Registrable Securities pursuant to participate Section 2.1 or Section 2.2, including, without limitation, participation in customary meetings with potential investors, preparation of materials for such investors, and making management of the Company available for “road show” presentations that may be reasonably requested and similar selling efforts. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(e) hereof, such Selling Holder will immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof (such period during which a Selling Holder is required to refrain from disposition of Registrable Securities, a “Suspension Period”), and, if so directed by the Underwriter Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in any Underwritten Offering; and
3.1.16 otherwisesuch Selling Holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested Section 3.1(a) hereof) by the Holders, in connection number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when the Company shall make available to the Selling Holders of Registrable Securities covered by such Registration Statement a prospectus supplemented or amended to conform with such Registrationthe requirements of Section 3.1(e) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Arhaus, Inc.), Registration Rights Agreement (Arhaus, Inc.)
Filings; Information. Whenever the Company is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1, the Company shall will use its best reasonable efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) prepare and file with the Commission a registration statement (which, in the case of an underwritten public offering pursuant to Section 3, shall be on Form S-3 (unless the Company does not qualify for use of Form S-3 in a registration involving only a secondary offering as soon provided in the General Instructions to Form S-3 in such registration, in which case such registration statement shall be a Form S-1) or other form of general applicability satisfactory to the managing underwriter selected as practicable a Registration Statement therein provided) with respect to such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement registration statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been soldthe completion of the distribution; provided, however, the Company shall be required to keep any registration statement effective for not less than 180 days;
3.1.2 (b) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by necessary to keep such registration statement effective for the Holders or any Underwriter period specified in Section 3.1(a) and as to comply with the provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold registration statement in accordance with the intended plan method of distribution disposition set forth in such Registration Statement or supplement to the Prospectus;registration statement for such period.
3.1.3 (c) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriters(i) each Selling Holder, (ii) not more than [one counsel] representing all Selling Holders, to be selected by a majority-in-interest of such Selling Holders, and (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by the foregoing within five days after delivery, and thereafter furnish to such Selling Holders, counsel and Underwriters, if any, for their review and comment such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement registration statement (including inducing each preliminary Prospectus), prospectus) and such other documents or information as the such Selling Holders, counsel or Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holders;.
3.1.4 prior to any public offering (d) After the filing of the registration statement, the Company will promptly notify each Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(e) The Company will use its best reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may requestrequests, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (f) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then thereafter delivered to the Investors of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or -112- 118 omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(g) The Company and the Holders will enter into customary agreements (including, if applicable, an underwriting agreement in effectcustomary form and which is reasonably satisfactory to the Company) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (the Selling Holders may, includes a Misstatementat their option, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative require that any or all of the Holders (such representative to be selected by a majority representations, warranties and covenants of the participating Company or to or for the benefit of such Underwriters also be made to and for the benefit of such Selling Holders), the Underwriters.
(h) The Company will make available to each selling Holder of such Registrable Securities (and will deliver to their counsel) and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel or auditors and will also make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe "Inspectors"), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing registration statement. Records which the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwisedetermines, in good faith, cooperate to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such information is made generally available to the public. Each Selling Holder of such -113- 119 Registrable Securities further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) In connection with an underwritten offering, the Company will participate, to the extent reasonably withrequested by the managing Underwriter for the offering or the Selling Holders, in customary efforts to sell the securities under the offering, including, without limitation, participating in "road shows"; provided that the Company shall not be obligated to participate in more than one such offering in any 12-month period. The Company may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and take such customary actions other information as may reasonably be legally required in connection with such registration including, without limitation, all such information as may be requested by the HoldersCommission or the NASD. The Company may exclude from such registration any Holder who fails to provide such information. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in connection Section 3.1(f) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(f) hereof to the date when the Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with such Registrationthe requirements of Section 3.1(f) hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Park N View Inc), Securities Purchase Agreement (Park N View Inc)
Filings; Information. Whenever the The Company is required to shall effect the registration of any Registrable Securities pursuant with respect to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such the Registrable Securities by the Investor in accordance with the intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) Subject to Section 1.1(e), the Company shall (i) prepare and file with the Commission as soon as practicable a the Registration Statement with respect to such Registrable Securities and Statement; (ii) use its commercially reasonable best efforts to cause such filed Registration Statement to become effective and to remain effective until all Registrable (pursuant to Rule 415 under the Securities covered by such Registration Statement have been sold;
3.1.2 Act or otherwise); (iii) prepare and file with the Commission such amendments and post-effective amendments supplements to the Registration Statement, Statement and such supplements to the Prospectus, Prospectus used in connection therewith as may be requested necessary to keep such Registration Statement effective for the time period prescribed by Section 4.2 and in order to effectuate the Holders or any Underwriter purpose of Registrable Securities or as may be required by this Agreement, the rulesPurchase Agreement, regulations or instructions applicable to and the registration form used by Warrant; and (iv) comply with the Company or by provisions of the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold during such period in accordance with the intended plan methods of distribution disposition by the Investor set forth in such Registration Statement or supplement Statement; provided, however, that the Investor shall be responsible for the delivery of the Prospectus to the Prospectus;Persons to whom the Investor sells the Shares and the Warrant Shares, and the Investor agrees to dispose of Registrable Securities in compliance with the plan of distribution described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws.
3.1.3 (b) Three (3) Trading Days prior to filing a the Registration Statement or prospectusProspectus, or any amendment or supplement thereto, furnish without charge thereto (excluding amendments deemed to result from the Underwriters, if any, and the Holders filing of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Company shall deliver to the Investor and to counsel representing the Investor, in accordance with the notice provisions of Section 4.8, copies of the Registration Statement, Prospectus included and/or any amendments or supplements thereto as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the Investor and such counsel, and thereafter deliver to the Investor and such counsel, in accordance with the notice provisions of Section 4.8, such number of copies of the Registration Statement Statement, each amendment and supplement thereto (in each case including all exhibits thereto), the Prospectus (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities.
(c) The Company shall deliver, in accordance with the notice provisions of Section 4.8, to each seller of Registrable Securities owned covered by the Registration Statement such Holders;
3.1.4 prior number of conformed copies of the Registration Statement and of each amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), such number of copies of the Prospectus (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to any public offering of such seller’s Registrable Securities, and such other documents, as such seller may reasonably request to facilitate the disposition of its Registrable Securities.
(d) After the filing of the Registration Statement, the Company shall promptly notify the Investor of any stop order issued or threatened by the Commission in connection therewith and take all commercially reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(e) The Company shall use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions each jurisdiction in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other customary acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, however, that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.1(e), subject itself to taxation in any such jurisdiction, consent or take any action to which it would be subject itself to general service of process or taxation in any such jurisdiction where it is not then jurisdiction, change any existing business practices, benefit plans or outstanding securities or amend or otherwise so subject;modify the Charter or Bylaws.
3.1.5 cause all such Registrable Securities (f) The Company shall make available to be listed on each securities exchange or automated quotation system on which similar securities issued the Investor (and will deliver to Investor’s counsel), (A) subject to restrictions imposed by the Company are then listed;
3.1.6 provide a transfer agent United States federal government or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice any agency or obtain knowledge instrumentality thereof, copies of all public correspondence between the Commission and the Company concerning the Registration Statement and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the “Inspectors”), (B) upon reasonable advance notice during normal business hours all financial and other records, pertinent corporate documents and properties of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five Company (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders)collectively, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter “Records”) as shall be reasonably necessary to participate, at each such person’s own expense, in the preparation of the Registration Statementenable them to exercise their due diligence responsibility, and cause the Company’s officers, directors officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with the RegistrationRegistration Statement; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants Inspectors must agree in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company writing for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives benefit of the Company not to participate use or disclose any such Records except as provided in customary “road show” presentations this Section 2.1(f). Records that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwiseCompany determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other judicial or governmental process; provided, however, that prior to any disclosure or release pursuant to the immediately preceding clause, the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors’ obligation not to disclose such Records; and, provided, further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records that counsel has advised the Inspectors that the Inspectors are compelled to disclose; provided, however, that upon any such required disclosure, such Inspector shall use his or her best efforts to obtain reasonable assurances that confidential treatment will be afforded such information. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company) shall be deemed confidential and shall not be used for any purposes other than as indicated above or by it as the basis for any market transactions in the securities of the Company or its affiliates unless and until such information is made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(g) The Company shall otherwise comply with all applicable rules and regulations of the Commission, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
(h) The Company shall appoint a transfer agent and registrar for all of the Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement.
(i) The Investor shall cooperate with the Company, as reasonably withrequested by the Company, in connection with the preparation and take filing of any Registration Statement hereunder. The Company may require the Investor to promptly furnish in writing to the Company such customary actions information as may reasonably be required in connection with such registration including, without limitation, all such information as may be requested by the HoldersCommission or the NASD or any state securities commission and all such information regarding the Investor, the Registrable Securities held by the Investor and the intended method of disposition of the Registrable Securities. The Investor agrees to provide such information requested in connection with such Registrationregistration within five (5) Business days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of the Registration Statement caused by the Investor’s failure to timely provide such information.
(i) Upon receipt of a Blackout Notice from the Company, the Investor shall immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until (i) the Company advises the Investor that the Blackout Period has terminated and (ii) the Investor receives copies of a supplemented or amended prospectus, if necessary. If so directed by the Company, the Investor will deliver to the Company (at the expense of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in the Investor’s possession (other than a limited number of file copies) of the prospectus covering such Registrable Securities that is current at the time of receipt of such notice.
Appears in 2 contracts
Samples: Registration Rights Agreement (Emisphere Technologies Inc), Registration Rights Agreement (Emisphere Technologies Inc)
Filings; Information. Whenever the The Company is required to shall effect the registration of any Registrable Securities pursuant with respect to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such the Registrable Securities by the Investor in accordance with the intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) Subject to Section 1.1(e), the Company shall (i) prepare and file with the Commission as soon as practicable a the Registration Statement with respect to such Registrable Securities and Statement; (ii) use its commercially reasonable best efforts to cause such filed Registration Statement to become effective and to remain effective until all Registrable (pursuant to Rule 415 under the Securities covered by such Registration Statement have been sold;
3.1.2 Act or otherwise); (iii) prepare and file with the Commission such amendments and post-effective amendments supplements to the Registration Statement, Statement and such supplements to the Prospectus, Prospectus used in connection therewith as may be requested necessary to keep such Registration Statement effective for the time period prescribed by Section 4.2 and in order to effectuate the Holders or any Underwriter purpose of Registrable Securities or as may be required by this Agreement, the rulesPurchase Agreement, regulations or instructions applicable to and the registration form used by Warrant and (iv) comply with the Company or by provisions of the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold during such period in accordance with the intended plan methods of distribution disposition by the Investor set forth in such Registration Statement or Statement; provided, however, that that the Company shall be under no obligation to supplement the Prospectus to reflect the issuance of any Shares pursuant to a Draw Down at any time prior to the Prospectus;Trading Day following the Settlement Date with respect to such Shares; and; provided further, that the Investor shall be responsible for the delivery of the Prospectus to the Persons to whom the Investor sells the Shares and the Warrant Shares, and the Investor agrees to dispose of Registrable Securities in compliance with the plan of distribution described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws.
3.1.3 (b) Three (3) Trading Days prior to filing a the Registration Statement or prospectusProspectus, or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein, furnish without charge supplements to the Underwriters, if anyProspectus required in respect of any particular Settlement Date, and supplements to the Holders Registration Statement for which consent of Registrable Securities included or notice to the Investor is not required pursuant to Section 6.12 of the Purchase Agreement), the Company shall deliver to the Investor and to counsel representing the Investor, in such Registration, and such Holders’ legal counselaccordance with the notice provisions of Section 4.8, copies of such the Registration Statement Statement, Prospectus and/or any amendments or supplements thereto as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the Investor and such counsel. Thereafter the Company shall deliver to the Investor and such counsel, in accordance with the notice provisions of Section 4.8, such number of copies of the Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, provided, however, that to the extent reasonably practicable, such delivery may be accomplished via electronic means.
(c) After the filing of the Registration Statement, the Company shall promptly notify the Investor of any stop order issued or threatened by the Commission in connection therewith and take all commercially reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions each jurisdiction in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other customary acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, however, that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.1(d), subject itself to taxation in any such jurisdiction, consent or take any action to which it would be subject itself to general service of process or taxation in any such jurisdiction where it is not then jurisdiction, change any existing business practices, benefit plans or outstanding securities or amend or otherwise so subject;modify the Charter or Bylaws.
3.1.5 cause all such Registrable Securities (e) The Company shall make available to be listed on each securities exchange or automated quotation system on which similar securities issued the Investor (and will deliver to Investor’s counsel), (A) subject to restrictions imposed by the Company are then listed;
3.1.6 provide a transfer agent United States federal government or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice any agency or obtain knowledge instrumentality thereof, copies of all public correspondence between the Commission and the Company concerning the Registration Statement and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the “Inspectors”), (B) upon reasonable advance notice during normal business hours all financial and other records, pertinent corporate documents and properties of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five Company (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders)collectively, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter “Records”) as shall be reasonably necessary to participate, at each such person’s own expense, in the preparation of the Registration Statementenable them to exercise their due diligence responsibility, and cause the Company’s officers, directors officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with the RegistrationRegistration Statement; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants Inspectors must agree in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company writing for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives benefit of the Company not to participate use or disclose any such Records except as provided in customary “road show” presentations this Section 2.1(e). Records that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwiseCompany determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other judicial or governmental process; provided, however, that prior to any disclosure or release pursuant to the immediately preceding clause, the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors’ obligation not to disclose such Records; and, provided, further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records that counsel has advised the Inspectors that the Inspectors are compelled to disclose; provided, however, that upon any such required disclosure, such Inspector shall use his or her best efforts to obtain reasonable assurances that confidential treatment will be afforded such information. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company) shall be deemed confidential and shall not be used for any purposes other than as indicated above or by it as the basis for any market transactions in the securities of the Company or its affiliates unless and until such information is made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(f) The Company shall otherwise comply with all applicable rules and regulations of the Commission, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
(g) The Company shall appoint (or shall have appointed) a transfer agent and registrar for all of the Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement.
(h) The Investor shall cooperate with the Company, as reasonably withrequested by the Company, in connection with the preparation and take filing of any Registration Statement hereunder. The Company may require the Investor to promptly furnish in writing to the Company such customary actions information as may reasonably be required in connection with such registration including, without limitation, all such information as may be requested by the HoldersCommission or the NASD or any state securities commission and all such information regarding the Investor, the Registrable Securities held by the Investor and the intended method of disposition of the Registrable Securities. The Investor agrees to provide such information requested in connection with such Registrationregistration within five (5) business days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of the Registration Statement caused by the Investor’s failure to timely provide such information.
(i) Upon receipt of a Blackout Notice from the Company, the Investor shall immediately discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until (i) the Company advises the Investor that the Blackout Period has terminated and (ii) the Investor receives copies of a supplemented or amended prospectus, if necessary. If so directed by the Company, the Investor will deliver to the Company (at the expense of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies in the Investor’s possession (other than a limited number of file copies) of the prospectus covering such Registrable Securities that is current at the time of receipt of such notice.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Tercica Inc), Registration Rights Agreement (Tercica Inc)
Filings; Information. Whenever the The Company is required to will effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan methods of distribution disposition thereof as furnished to the Company by any proposed seller of such Registrable Securities. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 a. The Company shall (i) prepare and file with the Commission SEC the Registration Statement(s) covering the shares as soon as practicable a Registration Statement with respect to such Registrable Securities and described in subsection 1.1(a) above; (ii) use its reasonable best efforts to cause such filed Registration Statement Statement(s) to become effective and remain effective until all Registrable (pursuant to Rule 415 under the Securities covered Act or otherwise) for the period prescribed by such Registration Statement have been sold;
3.1.2 Section 1.1(b); (iii) prepare and file with the Commission SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to each Registration Statement and the Prospectus, prospectus used in connection therewith as may be requested necessary to keep each Registration Statement effective for the time period prescribed by Section 1.1(b); and (iv) comply with the Holders or any Underwriter provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the disposition of all securities covered by each Registration Statement effective until all Registrable Securities covered by during such Registration Statement are sold period in accordance with the intended plan methods of distribution disposition by the Investor set forth in such each Registration Statement.
b. The Company shall file all necessary amendments to each Registration Statement or supplement in order to effectuate the Prospectus;purpose of this Agreement and the Stock Purchase Agreement.
3.1.3 c. Five (5) Trading Days prior to filing a each Registration Statement or prospectus, or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge the Company shall deliver to the UnderwritersInvestor and one firm of counsel representing the Investor, if any, and in accordance with the Holders notice provisions of Registrable Securities included in such Registration, and such Holders’ legal counselSection 4.8, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and comment by the Investor and such counsel, and thereafter deliver to the Investor and such counsel, in accordance with the notice provisions of Section 4.8, such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities.
d. The Company shall deliver, in accordance with the notice provisions of Section 4.8, to each broker as directed by the Investor such number of conformed copies of such Registration Statement and of each amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), such number of copies of the prospectus contained in such Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities owned by such Holders;
3.1.4 prior Act relating to any public offering of the Registrable Securities, and such other documents, as may be reasonably requested to facilitate the disposition of the Registrable Securities.
e. After the filing of each Registration Statement, the Company shall promptly notify the Investor of any stop order issued or threatened by the SEC in connection therewith and take all commercially reasonable actions required to prevent the entry of such stop order or to remove it if entered.
f. The Company shall use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such the Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, however, that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (f), subject itself to taxation in any such jurisdiction, or take any action to which it would be consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such g. The Company shall immediately notify the Investor, but in no event later than two (2) business days by facsimile and by overnight courier, upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities: (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agent, as applicable, and registrar for all such Registrable Securities no later than any other federal or state governmental authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such a Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included that makes any statement made in such Registration Statement 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 any changes in the Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney related prospectus or accountant retained by such Holders or Underwriter to participate, at each such person’s own expensedocuments so that, in the preparation case of a Registration Statement, 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 the case of the related 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 were made, not misleading; (v) the declaration by the SEC of the effectiveness of a Registration Statement; and (vi) the Company's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate, and the Company shall promptly make available to the Investor any such supplement or amendment to the related prospectus.
h. The Company shall enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (whereupon the Investor may, at its option, require that any or all of the representations, warranties and covenants of the Company also be made to and for the benefit of the Investor).
i. The Company shall make available to the Investor (and will deliver to Investor's counsel), subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, concerning any Registration Statement, and, except during a Blackout Period, will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company(collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with any Registration Statement. Records that the RegistrationCompany determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided, however, that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such representatives request or Underwriters enter into requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided, further, that if failing the entry of a confidentiality agreementprotective order or the waiver by the Company permitting the disclosure or release of such Records, in form and substance reasonably satisfactory the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records that counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company, prior ) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its affiliates unless and until such information is made generally available to the release or public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
j. To the extent required by law or reasonably necessary to effect a sale of Registrable Securities in accordance with prevailing business practices at the time of any such information;
3.1.11 obtain sale of Registrable Securities pursuant to a “comfort” Registration Statement, the Company shall deliver to the Investor a signed counterpart, addressed to the Investor, of (1) an opinion or opinions of counsel to the Company and (2) a comfort letter or comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions of comfort letters, as the managing Underwriter may case maybe, as the Investor therefor reasonably request, requests.
k. The Company shall otherwise comply with all applicable rules and may be found reasonably satisfactory to a majority-in-interest regulations of the participating Holders;SEC, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
3.1.12 on l. The Company shall appoint a transfer agent and registrar for all of the date class that includes the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the covered by a Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after Statement not later than the effective date of a Registration Statement.
m. The Company may require the Investor to furnish promptly in writing to the Company such information as may be legally required in connection with any registration including, without limitation, all such information as maybe requested by the SEC or the National Association of Securities Dealers. The Investor agrees to provide such information requested in connection with any registration within five (5) Trading Days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of a Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter caused by the Commission);
3.1.15 if the Registration involves the Registration Investor's failure to timely provide such information. Each seller of Registrable Securities involving gross proceeds shall notify the Company as promptly as practicable of any inaccuracy or change in excess information previously furnished by such seller to the Company or of $25,000,000the occurrence of any event, use in either case as a result of which any prospectus relating to the Registrable Securities contains or would contain an untrue statement of a material fact regarding such seller or its reasonable efforts intended method of disposition of such Registrable Securities or omits to state any material fact regarding such seller or such seller's intended method of disposition of such Registrable Securities required to be stated therein or necessary to make available senior executives the statements therein, in the light of the circumstances under which they were made, not misleading, and promptly furnish to the Company any additional information required to participate in customary “road show” presentations correct and update any previously furnished information or required so that may such prospectus shall not contain, with respect to such seller or the disposition of such Registrable Securities, an untrue statement of a material fact or omit to state a material fact required to be reasonably requested by stated therein or necessary to make the Underwriter in any Underwritten Offering; and
3.1.16 otherwisestatements therein, in good faiththe light of the circumstances under which they were made, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationnot misleading.
Appears in 2 contracts
Samples: Registration Rights Agreement (American Water Star Inc), Registration Rights Agreement (Integrated Technology Group)
Filings; Information. Whenever the Company is required to effect the registration of any FS Entity requests that any Registrable Securities be registered pursuant to Section 22.1, the Company shall use its reasonable best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company shall, subject to Section 2.1(d), as applicable, as expeditiously as possible prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which form shall be available for the sale of the Registrable Securities and to be registered thereunder in accordance with the intended method of distribution thereof, use its reasonable best efforts to cause such Registration Statement filed registration statement to become be declared effective as expeditiously as possible thereafter, and use reasonable best efforts to cause such registration statement to remain effective until the earlier of (i) ninety (90) days from the date such registration statement was declared effective or (ii) the date on which the sale of all Registrable Securities covered by such Registration Statement have included therein has been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by completed. If the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold receives multiple requests for registration in accordance with this Section 2, then, except as provided in Section 2.1(a), such requests shall be given priority based upon the intended plan of distribution set forth order in such Registration Statement or supplement to the Prospectus;which they were received.
3.1.3 (b) The Company shall, prior to filing a Registration Statement or any registration statement, prospectus, or any amendment or supplement theretothereto as contemplated by this Section 2, furnish without charge to the Underwriterseach Selling Holder, and each Underwriter, if any, and of the Holders of Registrable Securities included in such Registration, and such Holders’ legal counselcovered thereby, copies of each such Registration Statement document as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by the foregoing, and thereafter furnish to such Selling Holder and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder pursuant to such registration statement.
3.1.4 prior to any public offering (c) After the filing of the applicable registration statement, the Company shall promptly notify each Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the SEC and promptly take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder’s intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, however, that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is would not then otherwise so subject;be required to qualify but for this paragraph (d).
3.1.5 cause all such Registrable Securities to be listed on (e) The Company shall immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a Misstatement, and then material fact or omit to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative state any material fact required to be selected by a majority stated therein or necessary to make the statements therein not misleading and promptly make available to each Selling Holder copies of any such supplement or amendment.
(f) The Company shall enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the participating Holders), the Underwritersdisposition of such Registrable Securities.
(g) The Company shall deliver promptly to each Selling Holder of such Registrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe “Inspectors”), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the “Records”), subject to restrictions imposed by applicable law, as shall be reasonably necessary to enable them to conduct a reasonable due diligence investigation, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided, however, that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such representatives request or Underwriters enter into requirement so that the Company may seek an appropriate protective order or waive such Inspectors’ obligation not to disclose such Records; and provided, further, that if failing the entry of a confidentiality agreementprotective order or the waiver by the Company permitting the disclosure or release of such Records, in form and substance reasonably satisfactory the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company, prior ) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such is made available to the release or public in a manner compliant with Regulation FD under the Securities Act. Each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of any such information;
3.1.11 obtain Records is sought in a “comfort” letter from court of competent jurisdiction, give notice to the Company and allow the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters at its expense, to undertake appropriate action to prevent disclosure of the type customarily covered by “comfort” letters as Records deemed confidential.
(h) The Company shall otherwise use reasonable best efforts to comply with all applicable rules and regulations of the managing Underwriter may reasonably requestSEC, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) months, beginning within three (3) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder Act.
(i) The Company shall use reasonable best efforts to cause all such Registrable Securities to be listed on each national securities exchange or any successor rule promulgated thereafter automated quotation system on which the same class of securities issued by the CommissionCompany are then traded, listed or quoted (if any);.
3.1.15 if the Registration involves the Registration (j) The Company may require each Selling Holder of Registrable Securities involving gross proceeds to promptly furnish in excess writing to the Company such information regarding the plan of $25,000,000distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration.
(k) The Chairman of the Board of Directors of the Company, use its reasonable efforts to make available senior executives the Chief Executive Officer of the Company and other members of the management of the Company shall cooperate fully in any offering of Registrable Securities pursuant to participate Section 2.1, including, without limitation, participation in customary meetings with potential investors, preparation of all materials for such investors, and making management of the Company available for “road show” presentations that may be reasonably requested and similar selling efforts. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.4(e) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.4(e) hereof (such period during which a Selling Holder is required to refrain from disposition of Registrable Securities, a “Suspension Period”), and, if so directed by the Underwriter Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in any Underwritten Offering; and
3.1.16 otherwisesuch Selling Holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested Section 2.4(a) hereof) by the Holders, in connection number of days during the period from and including the date of the giving of notice pursuant to Section 2.4(e) hereof to the date when the Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with such Registrationthe requirements of Section 2.4(e) hereof.
Appears in 2 contracts
Samples: Registration Rights Agreement (Boot Barn Holdings, Inc.), Registration Rights Agreement (Boot Barn Holdings, Inc.)
Filings; Information. Whenever the Company is required to effect In connection with the registration and offering of any Registrable Securities pursuant to Section 2Sections 2.1 and 2.2 hereof, the Company shall will use its reasonable best efforts to effect the Registration to permit the sale registration and offering of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and that counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by for such Registration Statement have been sold;
3.1.2 prepare and file with period, not to exceed 180 days (or two years, in the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectuscase of a Shelf Registration), as may be requested reasonably necessary to effect the sale of the Registrable Securities registered thereunder; provided that if the Company shall furnish to the Selling Holders a certificate signed by the Holders Company's Chairman, President or any Underwriter Executive Vice-President or Vice-President stating that the Company's Board of Directors has determined in good faith that it would be detrimental or otherwise disadvantageous to the Company or its stockholders for such a registration statement to be filed as expeditiously as possible or for Registrable Securities to be offered pursuant to an effective Shelf Registration, because the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended and the public disclosure of which at the time would be materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a registration statement or any offering of Registrable Securities pursuant to an effective Shelf Registration for a period of not more than 90 days; provided that during each 360-day period the Company shall use its reasonable best efforts to permit a period of at least 180 consecutive days during which the Company will effect the registration of Registrable Securities or as may any offering of Registrable Securities pursuant to an effective Shelf Registration in accordance with this Agreement; and provided, further, that if (i) the effective date of any registration statement filed pursuant to a Demand Registration would otherwise be required by at least 45 calendar days, but fewer than 90 calendar days, after the rulesend of the Company's fiscal year, regulations or instructions applicable to the registration form used by the Company or by and (ii) the Securities Act or rules and regulations thereunder requires the Company to keep include audited financials as of the Registration Statement effective until all Registrable Securities covered by end of such Registration Statement are sold in accordance with fiscal year, the intended plan Company may delay the effectiveness of distribution set forth in such Registration Statement or supplement registration statement for such period as is reasonably necessary to the Prospectus;include therein its audited financial statements for such fiscal year.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in Selling Holders.
(c) After the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue filing of the business and operations of registration statement, the Company and do any and all other acts and things that may be necessary or advisable to enable will promptly notify the Selling Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its take all reasonable best efforts actions required to prevent the issuance entry of any such stop order or to obtain its withdrawal remove it if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationentered.
Appears in 2 contracts
Samples: Agreement and Plan of Restructuring and Merger (New Unitedglobalcom Inc), Agreement and Plan of Restructuring and Merger (Liberty Media Corp /De/)
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent, right agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holdersholders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters Underwriter of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (GigCapital2, Inc.), Registration Rights Agreement (GigCapital2, Inc.)
Filings; Information. Whenever In connection with the Company is required to effect Shelf Registration:
(i) Superior will prepare and file with the registration SEC a Registration Statement on any form of any Registrable Securities pursuant to Section 2, the Company SEC for which Superior then qualifies and which counsel for Superior shall use its best efforts to effect the Registration to permit deem appropriate and available for the sale of such the Registrable Securities to be registered thereunder in accordance with the intended plan method of distribution thereof as expeditiously as practicable, and in connection with any such request:thereof.
3.1.1 (ii) Superior will prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission SEC such amendments and post-effective amendments supplements to the Registration Statement, Statement and such supplements to the Prospectus, Prospectus used in connection therewith as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder necessary to keep the Registration Statement effective until for the period specified in Section 2(a)(ii) and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement are sold during such period in accordance with the intended plan methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus;Statement.
3.1.3 (iii) Superior will, if requested, prior to filing a the Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwritersany Shareholder, if anycopies thereof, and the Holders thereafter furnish to each Shareholder, such number of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filedStatement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus included in such the Registration Statement (including each preliminary Prospectus), and as such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders Shareholder may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(iv) Superior will promptly notify each Shareholder when the SEC declares the Registration Statement effective.
(v) Superior will promptly notify the Shareholders of any stop order issued or, to Superior's knowledge, threatened to be issued by the SEC and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it as soon as practicable if entered.
3.1.4 prior to any public offering of Registrable Securities, (vi) Superior will use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may Shareholders reasonably request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things ; provided that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall Superior will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph 2(c)(vi), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is jurisdiction.
(vii) Superior will notify the Shareholders of the commencement and termination of a Suspension Period. The Shareholders agree that during any Suspension Period, the Shareholders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the Registration Statement until receipt by the Shareholders of the copies of such supplemented or amended Prospectus as may be required and, if so directed by Superior, the Shareholders will deliver to Superior all copies, other than permanent file copies, then in the Shareholders' possession of the most recent Prospectus at the time of receipt of such notice.
(viii) Superior will enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the sale of the Registrable Securities pursuant to the Registration Statement.
(ix) Superior will make generally available to the Shareholders, as soon as reasonably practicable, but not then otherwise so subject;later than the first day of the fifteenth full calendar month following the effective date of the Registration Statement, an earnings statement covering a period of 12 months, beginning within three months after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the SEC thereunder.
3.1.5 (x) Superior will use its reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange or automated quotation system market on which similar securities issued by the Company are Common Stock is then listed;.
3.1.6 provide (xi) Superior will furnish to each Shareholder a transfer agent or warrant agentsigned counterpart, as applicable, and registrar for all such Registrable Securities no later than addressed to the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereofShareholder, of the issuance an opinion or opinions of any stop order by the Commission suspending the effectiveness counsel of such Registration Statement Superior and a comfort letter or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectuscomfort letters from Superior's independent public accountants, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” opinions or comfort letters as delivered to underwriters in underwritten public offerings of securities. Superior may require the managing Underwriter may reasonably requestShareholders to furnish promptly in writing to Superior such information regarding the Shareholders, and may be found reasonably satisfactory to a majority-in-interest the plan of the participating Holders;
3.1.12 on the date distribution of the Registrable Securities are delivered for sale pursuant and other information as Superior may from time to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may time reasonably request and or as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationthe Registration Statement.
Appears in 2 contracts
Samples: Merger Agreement (Superior Energy Services Inc), Registration Rights Agreement (Superior Energy Services Inc)
Filings; Information. Whenever the Company is required to effect the registration of (a) In connection with any Registrable Securities Shelf Registration Statement filed pursuant to Section 22.1 hereof and subject to Section 3.4 hereof, Purchaser shall:
(i) if requested by a Participating Seller, prior to filing the Shelf Registration Statement, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicableProspectus or any amendments or supplements thereto, and in connection with any such request:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect furnish to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been soldParticipating Seller copies thereof without charge;
3.1.2 (ii) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Shelf Registration Statement and the Prospectus as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder necessary to keep the Shelf Registration Statement effective until all Registrable Securities covered by during the Shelf Registration Period;
(iii) furnish to each Participating Seller, without charge, such number of conformed copies of the Shelf Registration Statement are sold in accordance with the intended plan and of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto exhibits), such number of copies of the Prospectus (including each preliminary prospectus), and such documents incorporated by reference therein), in the Shelf Registration Statement or the Prospectus included in as such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders Participating Seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities; and Purchaser hereby consents (except as otherwise provided in Sections 3.1(b)(ii) or 3.4(b) hereof) to the use of the Prospectus or any amendment or supplement thereto in accordance with applicable law by such Holders;
3.1.4 prior to any public the Participating Sellers, in each case in the form most recently provided by Purchaser, during the Shelf Registration Period in connection with the offering and sale of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities Prospectus or “blue sky” laws of such jurisdictions any amendment or supplement thereto in the United States as the Holders of Registrable Securities included in such Registration Statement accordance with applicable law;
(in light of their intended plan of distributioniv) may request, and (ii) take such action necessary use its commercially reasonable efforts to cause such register or qualify all Registrable Securities covered by the Shelf Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of under the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition securities laws of such Registrable Securities jurisdictions as the Participating Sellers shall request, and to keep such registration or qualification in such jurisdictionseffect for the Shelf Registration Period; provided, that the Company Purchaser shall not be required to (A) qualify generally to do business as a foreign corporation in any such jurisdiction wherein it is not so qualified, (B) consent to general service of process in any such jurisdiction or (C) subject itself to taxation in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any liable for such jurisdiction where it is not then otherwise so subjecttaxes;
3.1.5 cause all such Registrable Securities to be listed on (v) promptly notify each securities exchange or automated quotation system on which similar securities issued by Participating Seller in writing during the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Shelf Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five Period (5A) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such the Shelf Registration Statement, as then in effect, includes as to Purchaser an untrue statement of a Misstatement, and then material fact or omits to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative state any material fact required to be selected by a majority of stated therein or necessary to make the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expensestatements therein, in the preparation light of the Registration Statementcircumstances under which they were made, not misleading, and cause at the Company’s officerswritten request of the Participating Seller, directors prepare and employees furnish to supply all information reasonably requested by any the Participating Sellers a reasonable number of copies of a supplement to or an amendment of the Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such representativeRegistrable Securities, Underwriter, attorney the Prospectus shall not include an untrue statement of a material fact or accountant in connection with omit to state a material fact required to be stated therein or necessary to make the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementstatements therein, in form and substance reasonably satisfactory to light of the Companycircumstances under which they are made, prior to not misleading, (B) of the release or disclosure issuance by the Commission of any such information;
3.1.11 obtain a “comfort” letter from stop order suspending the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters effectiveness of the type customarily covered by “comfort” letters as Shelf Registration Statement or the managing Underwriter may reasonably requestinitiation or threatening of any proceedings for that purpose, and may be found reasonably satisfactory to a majority-in-interest (C) of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, receipt by Purchaser of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters any notification with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest suspension of the participating Holdersqualification of the Registrable Securities for sale in any jurisdiction or the initiation or threat of any proceeding for such purpose;
3.1.13 in (vi) use its commercially reasonable efforts to obtain the event withdrawal of any Underwritten Offering, enter into and perform its obligations under an underwriting agreementorder suspending the effectiveness of the Shelf Registration Statement or any post-effective amendment thereto or any order suspending or preventing the use of any Prospectus or suspending the qualification of any Registrable Securities for sale in any jurisdiction, in usual and customary formeach case as promptly as practicable; and
(vii) if reasonably requested by the Participating Sellers, with the managing Underwriters of such offering;
3.1.14 make available in writing, use its commercially reasonable efforts to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after list prior to the effective date of the Shelf Registration Statement all Registrable Securities covered by the Shelf Registration Statement, to the extent they are not already so listed, on the Nasdaq, or if Purchaser Common Stock is not traded on the Nasdaq, the principal exchange on which satisfies Purchaser Common Stock is traded.
(b) In connection with the provisions Shelf Registration Statement filed pursuant to Section 2.1 hereof, each Participating Seller shall:
(i) upon receipt of any notice from Purchaser in accordance with Section 11(a3.1(a)(v)(A), (B) or (C) hereof (with respect to (C), only with respect to the jurisdiction suspending qualification), immediately discontinue the offer and sale of Registrable Securities pursuant to the Prospectus until receipt by the Participating Sellers of copies of an amended or supplemented Prospectus or until Purchaser notifies the Participating Sellers in writing that the applicable suspension has been removed; and, if so directed by Purchaser, the Participating Sellers will deliver to Purchaser all copies, other than permanent file copies then in the Participating Sellers’ possession, of the most recent Prospectus at the time of receipt of such notice;
(ii) cooperate with Purchaser in connection with the preparation and filing of any Shelf Registration Statement and, upon written request from Purchaser, each Participating Seller shall promptly furnish in writing to Purchaser such information regarding such Participating Seller, the distribution of the Registrable Securities Act and Rule 158 thereunder other matters as may be required by applicable law, rule or regulation for inclusion in the Shelf Registration Statement (or any successor rule promulgated thereafter amendment or supplement thereto), it being agreed that the provision of such information by such Participating Seller to Purchaser shall be a condition precedent to Purchaser’s obligations under Sections 2.1 and 3.1 hereof with respect to the Registrable Securities held by such Participating Seller.
(iii) during the Shelf Registration Period, not (A) effect any stabilization transactions or engage in any stabilization activity in connection with Purchaser Common Stock or other equity securities of Purchaser in contravention of Regulation M under the 1934 Act, or (B) permit any “Affiliated Purchaser” (as that term is defined in Regulation M under the 1000 Xxx) to bid for or purchase for any account in which such Participating Seller has a beneficial interest, or attempt to induce any other Person to purchase, any shares of Purchaser Common Stock or other equity securities of Purchaser in contravention of Regulation M under the 1934 Act; and
(iv) (A) offer to sell, sell or otherwise distribute the Registrable Securities in reliance upon the Shelf Registration Statement only after the Shelf Registration Statement is declared effective under the 1933 Act, (B) distribute the Registrable Securities only in accordance with the manner of distribution contemplated by the CommissionProspectus (if such sale or distribution is made in reliance upon the Shelf Registration Statement);
3.1.15 if the Registration involves the Registration , and (C) promptly report to Purchaser in writing distributions of Registrable Securities involving gross proceeds in excess made by such Participating Seller pursuant to the Prospectus.
(c) Except as otherwise expressly provided herein, Purchaser shall not be required to take any action or enter into any agreement with any Participating Seller or any third party for or on behalf of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, Participating Seller in connection with such Registrationthe disposition of Registrable Securities (including, without limitation, underwriting agreements).
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect the registration of Holder requests that any Registrable Securities be registered pursuant to Section 22.01 hereof (the "Selling Holder"), the Company shall will use its reasonable best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, but only to the extent that registration is then available for the Holder on the applicable required form for registration promulgated by the Commission for such intended method of disposition, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by the earlier of (i) 180 days from the date such Registration Statement have been sold;
3.1.2 prepare and file with registration statement became effective or (ii) the Commission such amendments and post-effective amendments to date on which the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter sale of Registrable Securities or as may be required by has been completed; provided that, if the rules, regulations or instructions applicable Company shall furnish to the registration form used Selling Holder a certificate signed by either its Chairman or Chief Executive Officer stating that in his good faith judgment it would be significantly disadvantageous to the Company or by its shareholders for such a registration statement to be filed as expeditiously as possible, the Securities Act or rules and regulations thereunder Company shall have a period of not more than 120 days within which to keep file such registration statement measured from the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold date of receipt of the request in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Section 2.01.
3.1.3 (b) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holder, one law firm representing the Selling Holder, and the Managing Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to prompt review and approval by the foregoing, and thereafter furnish to the Selling Holder, counsel and the Managing Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in Selling Holder, such Registration law firm or the legal counsel for any such Holders Managing Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;the Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the registration statement, the Company will promptly notify the Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Selling Holder reasonably (in light of their the Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in such jurisdictionsowned by the Selling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by (e) The Company will immediately notify the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities 1933 Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 promptly make available to the Selling Holder any such supplement or amendment.
(f) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in effect, includes a Misstatementcustomary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative the Selling Holder may, at its option, require that any or all of the Holders (such representative to be selected by a majority representations, warranties and covenants of the participating Holders)Company to or for the benefit of the Managing Underwriters also be made to and for the benefit of the Selling Holder.
(g) The Chairman of the Board of Directors of the Company, the UnderwritersChief Executive Officer of the Company and other members of the management of the Company will cooperate fully in any offering of Registrable Securities hereunder, including, without limitation, participation in meetings with potential investors and preparation of all materials for such investors.
(h) The Company will deliver promptly to the Selling Holder of such Registrable Securities and the Managing Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and make available for inspection by the Selling Holder of such Registrable Securities, the Managing Underwriter, if any, participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by such Holders the Selling Holder or the Managing Underwriter to participate(collectively, at each such person’s own expensethe "Inspectors"), in (it being understood that the preparation Company is responsible for payment of the Registration Statementreasonable fees and expenses of only one law firm pursuant to clause (viii) of Section 3.02) all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), subject to restrictions imposed by any governmental authority governing access to classified information, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and provided, further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Selling Holder agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory fiduciary obligation to the Company, prior ) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such is made generally available to the release or public. The Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of any such information;Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
3.1.11 obtain (i) The Company will use its reasonable best efforts to furnish to the Selling Holder and to the Managing Underwriter, if any, a “comfort” signed counterpart, addressed to the Selling Holder or the Managing Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the managing Underwriter case may reasonably requestbe, and may be found reasonably satisfactory to a majority-in-interest as the Selling Holder of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions offering or the Managing Underwriter therefor reasonably requests.
(j) The Company will otherwise use its reasonable best efforts to comply with all applicable rules and negative assurance lettersregulations of the Commission, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the 1933 Act.
(k) The Company will use its reasonable best efforts (a) to cause all such Registrable Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter to be listed on each national securities exchange on which similar securities issued by the CommissionCompany are then listed (if any);
3.1.15 , if the Registration involves listing of such Registrable Securities is then permitted under the Registration rules of such exchange or (b) to secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Commission or, failing that, to secure NASDAQ authorization for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD.
(l) The Company may require the Selling Holder of Registrable Securities involving gross proceeds to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives the Company such information regarding the distribution of the Registrable Securities as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration. The Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.01(e) hereof, the Selling Holder will forthwith discontinue and cause its Affiliates to discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until the Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.01(e) hereof and, if so directed by the Company, the Selling Holder will deliver to the Company all copies, other than permanent file copies then in the Selling Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 3.01(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.01(e) hereof to the date when the Company shall make available to the Selling Holder of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 3.01(e) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Cyberkinetics Neurotechnology Systems, Inc.)
Filings; Information. Whenever (a) The Company will prepare and file with the Company is required to effect SEC the registration Registration Statement covering sales of any the Registrable Securities pursuant to Section 2, by the Company Holder on a form which shall use its best efforts to effect the Registration to permit be appropriate for the sale of such the Registrable Securities to be registered thereunder in accordance with the intended plan method of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and shall use its reasonable best efforts to cause such Registration Statement to become be declared effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or SEC as may be required by the rules, regulations or instructions applicable to the registration form used by the soon as practicable after filing. The Company or by the Securities Act or rules and regulations thereunder to shall furthermore keep the such Registration Statement effective until all the shares covered thereby are no longer Registrable Securities covered by such Registration Statement are sold and shall comply in accordance all material respects with the intended plan applicable requirements of distribution set forth in such Registration Statement or supplement to the Prospectus;Securities Exchange Act of 1934, as amended, including, but not limited to, timely filing of all reports with the SEC as required thereunder.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holder and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counselregistration statement, copies of such Registration Statement registration statement as proposed to be filed, and thereafter the Company will furnish to such Selling Holder and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the Registration Statement, the Company will promptly notify the Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to taxation in any such jurisdiction, or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by (e) The Company will immediately notify the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, such prospectus will not contain an 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 promptly make available to the Selling Holder any such supplement or amendment.
(f) The Company and the Selling Holder will enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities.
(g) The Company will make available for inspection by any Selling Holder, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees of the Company to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementCompany determines, in form good faith, to be confidential and substance reasonably satisfactory which it, in writing, notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. The Selling Holder of such Registrable Securities agrees that information designated by the Company as confidential and 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 Company or its affiliates unless and until such is made generally available to the public. The Selling Holder of such Registrable Securities further sees that it will, upon learning that the disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, prior at its expense, to the release or undertake appropriate action to prevent disclosure of any such information;the Records deemed confidential.
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form (h) The Company will otherwise use its best efforts to comply with all applicable rules and covering such matters regulations of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably requestSEC, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) months, beginning within three (3) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder Act.
(i) The Company will use its best efforts to cause all Registrable Securities to be listed for trading on each securities exchange or any successor rule promulgated thereafter other securities market on which similar securities issued by the Commission);Company are then listed.
3.1.15 if (j) The Company may require the Registration involves the Registration Selling Holder of Registrable Securities involving gross proceeds to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives the Company such information regarding the distribution of the Registrable Securities as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
(k) The Selling Holder shall, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(e) hereof, forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof, and, if so directed by the Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when the Company shall make available to the Selling Holder of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 3.1(e) hereof.
Appears in 1 contract
Filings; Information. Whenever the Holders have requested that any Registrable Securities be registered pursuant to this agreement, the Company is required will use its reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as practicable prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof (it being understood that the Company shall use Form S-3 (or any replacement form) if such form is then available), and use its commercially reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;effective.
3.1.2 (b) The Company will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by necessary to keep such registration statement effective and to comply with the Holders or any Underwriter provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold registration statement until such time as all of such securities have been disposed of in accordance with the intended plan methods of distribution disposition by the Selling Holder or Selling Holders thereof set forth in such Registration Statement or supplement to the Prospectus;registration statement.
3.1.3 (c) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder, counsel representing any Selling Holders, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the foregoing within 5 Business Days after delivery, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior (d) After the filing of the registration statement, the Company will promptly notify each Selling Holder covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to any public offering prevent the entry of Registrable Securities, such stop order or to remove it if entered.
(e) The Company will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States and such other jurisdictions as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (f) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a Misstatementmaterial fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and then will promptly make available to correct each Selling Holder any such Misstatement supplement or amendment.
(g) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as set forth are reasonably required in Section 3.4 hereof;
3.1.10 permit a representative order to expedite or facilitate the disposition of such Registrable Securities in accordance with the intended plan of distribution of the Holders Selling Holders.
(h) The Company will deliver promptly to each Selling Holder of such representative to be selected by a majority of the participating Holders), the UnderwritersRegistrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company and its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe "Inspectors"), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the "Records"), as shall be reasonably necessary to enable them to perform a reasonable and customary due diligence investigation, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementCompany determines, in form good faith, to be confidential and substance reasonably satisfactory which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the Companydisclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided that prior to any disclosure or release pursuant to clause (ii), the release or disclosure Inspectors shall provide the Company with prompt notice of any such information;request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and provided, further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
3.1.11 obtain (i) The Company will furnish to each Underwriter, if any, (i) an opinion or opinions of counsel to the Company and (ii) a “comfort” comfort letter or comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agentUnderwriter, if any, therefor reasonably requests.
(j) The Company will use its commercially reasonable efforts to comply with all applicable rules and regulations of the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance lettersCommission, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(or any successor rule promulgated thereafter k) The Company will use its commercially reasonable efforts (a) to cause all such Registrable Securities to be listed on a national securities exchange (if such shares are not already so listed) and on each additional national securities exchange on which similar securities issued by the CommissionCompany are then listed (if any);
3.1.15 , if the Registration involves the Registration listing of such Registrable Securities involving gross proceeds in excess is then permitted under the rules of $25,000,000, use its reasonable efforts such exchange or (b) to make available senior executives secure designation of the Company to participate in customary “road show” presentations that may be reasonably requested all such Registrable Securities covered by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions registration statement as may reasonably be requested by the Holders, in connection with such Registration.a
Appears in 1 contract
Samples: Management Stockholders Agreement (Cpi International, Inc.)
Filings; Information. Whenever the Company is required to effect In connection with the registration of any Registrable Securities pursuant to Section 22.1, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such requestCompany:
3.1.1 (a) will (i) prepare and file with the Commission SEC, as soon promptly as practicable a reasonably possible, such amendments and supplements to such Shelf Registration Statement and the prospectus used in connection therewith as may be necessary to make sure such Shelf Registration Statement is, during the Effectiveness Period, in compliance with the provisions of the Act and the rules and regulations thereunder, and (ii) respond as promptly as reasonably possible, and in any event within fifteen (15) business days, to any comments received from the SEC with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Shelf Registration Statement or supplement any amendment thereto and as promptly as reasonably possible provide the Investor true and complete copies of all correspondence from and to the ProspectusSEC relating to the Shelf Registration Statement provided that the Company is not required to produce any information to the Investor pursuant to this Section 3.1(a) if the Company in good fxxxx xxxxx it material non-public information or otherwise of a confidential nature;
3.1.3 (b) will, not less than three days prior to filing a Shelf Registration Statement or prospectus, prospectus or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge to the UnderwritersInvestor and one firm of counsel representing the Investor, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies a copy of such Shelf Registration Statement as proposed to be filed, each amendment and supplement together with exhibits thereto, which documents will be subject to review by such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein)parties. Thereafter, the Prospectus Company shall furnish to the Investor and its counsel copies of the “final” prospectus included in such Shelf Registration Statement (including each preliminary Prospectus), prospectus) and such other documents any amendment or supplement thereto as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such HoldersSecurities;
3.1.4 prior to any public offering of Registrable Securities, (c) will use its reasonable best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be (C) consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subjectjurisdiction;
3.1.5 cause all such (d) will promptly notify the Investor upon the occurrence of any of the following events in respect of a Shelf Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities; (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agent, as applicable, and registrar for all such Registrable Securities no later than any other federal or state governmental authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the Shelf Registration Statement for amendments or supplements to the Shelf Registration Statement or related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such the Shelf Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent purpose; (iv) the issuance happening of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to event which makes any statement made in the filing of any Shelf Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus related prospectus or any document that is incorporated or deemed to be incorporated therein by reference into such untrue in any material respect or which requires the making of any changes in the Shelf Registration Statement, related prospectus or documents so that, in the case of the Shelf Registration Statement, 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 the case of the related 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 were made, not misleading; and (vi) the Company’s reasonable determination that a post-effective amendment to the Shelf Registration Statement would be appropriate; and the Company will promptly make available to the Investor any such supplement or Prospectusamendment to the related prospectus;
(e) will otherwise comply with all applicable rules and regulations of the SEC, furnish including, without limitation, compliance with applicable reporting requirements under the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
(f) will appoint a copy thereof to each seller of transfer agent and registrar for all such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to covered by such Shelf Registration Statement is not later than the effective date of such Shelf Registration Statement; and
(g) may require the Investor to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration including, without limitation, all such information as may be requested by the SEC, the NASD, or other similar governmental entity. The Investor agrees to provide such information requested in connection with such registration within three (3) business days after receiving such written request and the Company shall not be delivered under responsible for (and the Securities Actpenalties specified in Section 2.1(c) shall not apply in respect of) any delays in obtaining or maintaining the effectiveness of the Shelf Registration Statement caused by the Investor’s failure to timely provide such information. The Investor agrees that, upon receipt of any notice from the Company of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth kind described in Section 3.4 3.1(d) hereof;
3.1.10 permit a representative , the Investor will forthwith discontinue disposition of Registrable Securities pursuant to the Shelf Registration Statement covering such Registrable Securities until the Investor’s receipt of the Holders (such representative to be selected by a majority copies of the participating Holders)supplemented or amended prospectus contemplated by Section 3.1(d) hereof, the Underwritersand, if any, and any attorney or accountant retained so directed by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior the Investor will deliver to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants Company all copies, other than permanent file copies then in the event Investor’s possession, of an Underwritten Registration, in customary form and the most recent prospectus covering such matters Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Shelf Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory giving of notice pursuant to a majority-in-interest of the participating Holders;
3.1.12 on Section 3.1(d) hereof to the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing when the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 shall make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning Investor a prospectus supplemented or amended to conform with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions requirements of Section 11(a3.1(d) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationhereof.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect the registration of any Holder requests that any -------------------- Registrable Securities be registered pursuant to Section 2Sections 2.1, the Company shall will use its best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will, subject to Section 2.1(d), as expeditiously as possible prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by the earlier of (i) 90 days from the date such Registration Statement have been sold;
3.1.2 prepare and file with registration statement became effective or (ii) the Commission such amendments and post-effective amendments to date on which the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter sale of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by has been completed. If the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold receives multiple demands for registration in accordance with this Agreement, then, except as provided in Section 2.1(a), such demands shall be handled in the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;order received.
3.1.3 (b) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder, one counsel representing all such Selling Holders, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to prompt review and approval by the foregoing, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the registration statement, the Company will promptly notify each Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) -------- qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (e) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a Misstatement, and then material fact or omit to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative state any material fact required to be selected by a majority stated therein or necessary to make the statements therein not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(f) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the participating Holders), the Underwriterssuch Registrable Securities.
(g) The Company will deliver promptly to each Selling Holder of such Registrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe "Inspectors"), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the "Records"), subject to restrictions imposed by any governmental authority governing access to classified information, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; providedprovided that prior to any disclosure or release -------- pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and provided further, that if failing the entry of a ---------------- protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory fiduciary obligation to the Company, prior ) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such is made generally available to the release or public. Each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of any such information;
3.1.11 obtain Records is sought in a “comfort” letter from court of competent jurisdiction, give notice to the Company and allow the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters at its expense, to undertake appropriate action to prevent disclosure of the type customarily covered by “comfort” letters as Records deemed confidential.
(h) The Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the managing Underwriter may reasonably requestSEC, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
Appears in 1 contract
Filings; Information. Whenever the The Company is required to will effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the and sale of such Registrable Securities in accordance with the intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) The Company shall prepare and file with the Commission as soon as practicable SEC a Registration Statement registration statement on Form SB-2 (if use of such form is then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company then qualifies and which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities and Securities); use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Securities Act or otherwise); prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective during the term of this Agreement; prepare and file within one day after each Closing Date any prospectus supplement required under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file during such period in accordance with the Commission intended methods of disposition by the Investor set forth in such amendments and post-effective Registration Statement.
(b) The Company shall file all necessary amendments to the Registration StatementStatement in order to effectuate the purpose of this Agreement and the Investment Agreement.
(c) If so requested by the managing underwriters, if any, or the holders of a majority in aggregate amount of the Registrable Securities being actually issued, the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such supplements holders agree should be included therein, and (ii) make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment; provided, however, that the ProspectusCompany shall not be required to take any action pursuant to this Section 2.1(c)(ii) that would, as may be in the opinion of counsel for the Company, violate applicable law.
(d) In connection with the filing of a Registration Statement, the Company shall enter into such agreements and take all such other reasonable actions in connection therewith (including those reasonably requested by the Holders managing underwriters, if any, or any Underwriter the holders of a majority in aggregate principal amount of the Registrable Securities being sold) in order to expedite or as may facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company (including with respect to businesses or assets acquired or to be required acquired by the rulesCompany), regulations and the Registration Statement, prospectus and documents, if any, incorporated or instructions applicable 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, and confirm the same if and when requested; (ii) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the registration form used by selling holders of such Registrable Securities and the Company underwriters, if any, than those set forth herein (or by such other provisions and procedures acceptable to the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all holders of a majority in aggregate principal amount of Registrable Securities covered by such Registration Statement are sold and the managing underwriters, if any); and (iii) deliver such documents and certificates as may be reasonably requested by the holders of a majority in accordance aggregate principal amount of the Registrable Securities being sold, their counsel and the managing underwriters, if any, to evidence the continued validity of their representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the intended plan of distribution set forth in such Registration Statement underwriting agreement or supplement to other agreement entered into by the Prospectus;Company.
3.1.3 (e) Five Trading Days prior to filing a Registration Statement or prospectus, or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge the Company shall deliver to the Underwriters, if any, and the Holders seller of Registrable Securities included and counsel representing the seller of Registrable Securities, in such Registration, and such Holders’ legal counselaccordance with the notice provisions of Section 4.8, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by such parties, and thereafter deliver to the seller of Registrable Securities and its counsel, in accordance with the notice provisions of Section 4.8, such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities.
(f) After the filing of the Registration Statement, the Company shall promptly notify the Investor of any stop order issued or threatened by the SEC in connection therewith and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (g) The Company shall use its reasonable best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, provided that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (g), subject itself to taxation in any such jurisdiction, or take any action to which it would be consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (h) The Company shall immediately notify the Investor upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities: (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agent, as applicable, and registrar for all such Registrable Securities no later than any other federal or state governmental authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result that makes any statement made in the Registration Statement 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 any changes in the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney related prospectus or accountant retained by such Holders or Underwriter to participate, at each such person’s own expensedocuments so that, in the preparation case of the Registration Statement, 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 the case of the related 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 were made, not misleading; and (v) the Company's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
(i) The Company shall enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (whereupon the Investor may, at its option, require that any or all of the representations, warranties and covenants of the Company also be made to and for the benefit of the Investor).
(j) The Company shall make available to the Investor (and will deliver to Investor's counsel), subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such Registration Statement. Records that the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; providedprovided that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into fiduciary obligation to the Company) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such information is made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a confidentiality agreementcourt of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(k) The Company shall deliver, in form and substance reasonably satisfactory accordance with the notice provisions of Section 4.8, to the Investor a signed counterpart, addressed to the Investor, of (1) an opinion or opinions of counsel to the Company, prior in such form reasonably acceptable to the release Investor, and (2) to the extent required by law or disclosure reasonably necessary to effect a sale of Registrable Securities in accordance with prevailing business practices at the time of any such information;
3.1.11 obtain sale of Registrable Securities pursuant to a “comfort” Registration Statement, a comfort letter or comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the managing Underwriter case may be, as the Investor therefor reasonably request, requests.
(l) The Company shall otherwise comply with all applicable rules and may be found reasonably satisfactory to a majority-in-interest regulations of the participating Holders;SEC, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
3.1.12 on the date the (m) The Company shall appoint a transfer agent and registrar for all such Registrable Securities are delivered for sale pursuant to covered by such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after Statement not later than the effective date of such Registration Statement.
(n) The Company may require the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds Investor to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives of the Company to participate in customary “road show” presentations that such information as may be reasonably requested by the Underwriter legally required in any Underwritten Offering; and
3.1.16 otherwiseconnection with such registration including, in good faithwithout limitation, cooperate reasonably with, and take all such customary actions information as may reasonably be requested by the Holders, SEC or the National Association of Securities Dealers. The Investor agrees to provide such information requested in connection with such Registrationregistration within ten (10) business days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of the Registration Statement directly caused by the Investor's failure to timely provide such information.
Appears in 1 contract
Filings; Information. Whenever the Company is required a Holder with Demand Registration rights pursuant to effect the registration of Section 2.01 hereof requests that any Registrable Securities be registered pursuant to Section 22.01 hereof, the Company shall will use its best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by the earlier of (i) 180 days from the date such Registration Statement have been sold;
3.1.2 prepare and file with registration statement became effective or (ii) the Commission such amendments and post-effective amendments to date on which the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter sale of Registrable Securities or as may be required by has been completed; provided that, if the rules, regulations or instructions applicable Company shall furnish to the registration form used Holder making a request pursuant to Section 2.01 a certificate signed by either its Chairman or the Vice Chairman stating that in his good faith judgment it would be significantly disadvantageous to the Company or by its shareholders for such a registration statement to be filed as expeditiously as possible, the Securities Act or rules and regulations thereunder Company shall have a period of not more than 180 days within which to keep file such registration statement measured from the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold date of receipt of the request in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Section 2.01.
3.1.3 (b) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder, one counsel representing all such Selling Holders, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to prompt review and approval by the foregoing, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder, counsel or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the registration statement, the Company will promptly notify each Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (e) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities 1933 Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 promptly make available to each Selling Holder any such supplement or amendment.
(f) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in effect, includes a Misstatementcustomary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative the Selling Holders may, at their option, require that any or all of the Holders (such representative to be selected by a majority representations, warranties and covenants of the participating Company to or for the benefit of such Underwriters also be made to and for the benefit of such Selling Holders).
(g) The Chairman of the Board of Directors of the Company, the UnderwritersChief Executive Officer of the Company and other members of the management of the Company will cooperate fully in any offering of Registrable Securities hereunder, including, without limitation, participation in meetings with potential investors and preparation of all materials for such investors.
(h) The Company will deliver promptly to each Selling Holder of such Registrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof copies of all correspondence between the Commission and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior its counsel or auditors and all memoranda relating to discussions with the release Commission or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters its staff with respect to the Registration registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in respect of which any disposition pursuant to such opinion is being given as the Holdersregistration statement and any attorney, placement agent, sales agent, accountant or other professional retained by any such Selling Holder or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters(collectively, and may be found reasonably satisfactory to a majority in interest the "Inspectors"), (it being understood that the Company is responsible for payment of the participating Holders;
3.1.13 in the event reasonable fees and expenses of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available only one counsel pursuant to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve clause (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(aviii) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.Section
Appears in 1 contract
Samples: Registration Rights Agreement (Galyans Trading Co Inc)
Filings; Information. Whenever the Company is required to effect In connection with the registration of any Registrable Securities pursuant to Section 22.01 and Section 2.02 hereof, the Company shall will use its best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable (but in any event within 60 days) with the Commission a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective (i) with respect to any Demand Registration (other than a Shelf Registration) or Piggyback Registration, for such period, not to exceed 120 days, as may be reasonably necessary to effect the sale of such securities and (ii) with respect to a Shelf Registration, until the earlier of the sale of all Registrable Securities thereunder and the end of the 36th calendar month from the time the second Shelf Registration becomes effective; provided that if the Company shall furnish to the Selling Holder a certificate signed by the Company's Chairman or President stating that the Company's Board of Directors has determined in good faith that it would be detrimental or otherwise disadvantageous to the Company or its shareholders for such a registration statement to be filed as expeditiously as possible because the sale of Registrable Securities covered by such registration statement or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the public disclosure of which at the time would be materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a registration statement for a period of not more than 180 days; provided, further, that the Company shall not exercise its right to preempt, delay or postpone any registration pursuant to Section 2.01(e), the first proviso to this Section 3.01(a), or Section 3.01(b) for more than 180 days in the aggregate for all such provisions during any period of 360 consecutive days; provided, further, that the Company may exercise its rights under Section 3.01(a) only once with respect to any particular registration statement; and provided further that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statement have been soldwould otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financial statements of the Company as of the end of such fiscal year, the Company may delay the effectiveness of such registration statement for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year.
(b) Anything in this Agreement to the contrary notwithstanding, it is understood and agreed that the Company shall not be required to keep any Shelf Registration effective or useable for offers and sales of the Registrable Securities, file a post effective amendment to a Shelf Registration statement or prospectus supplement or to supplement or amend any registration statement, if the Company is then involved in discussions concerning, or otherwise engaged in, any material financing or investment, acquisition or divestiture transaction or other material business purpose, if the Company determines in good faith that the making of such a filing, supplement or amendment at such time would interfere with such transaction or purpose. The Company shall promptly give the Holders of Registrable Securities written notice of such postponement containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. Upon receipt by a Holder of Registrable Securities of notice of an event of the kind described in this Section 3.01(b), such Holder shall forthwith discontinue such Holder's disposition of Registrable Securities until such Holder's receipt of notice from the Company that such disposition may continue and of any supplemented or amended prospectus indicated in such notice. Notwithstanding anything to the contrary contained herein, the Company shall not be entitled to preempt, delay or postpone the filing or effectiveness of any registration statement, pre- or post-effective amendment or supplement to any registration statement or prospectus supplement pursuant to Section 2.01(e), the first proviso of Section 3.01(a), or this Section 3.01(b) for more than 180 days in the aggregate for all such provisions during any period of 360 consecutive days.
(c) Before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to any Selling Holder and to the applicable managing Underwriters, if any, draft copies of all such documents proposed to be filed at least ten (10) business days prior thereto, which documents will be subject to the reasonable review of such Selling Holders, the applicable managing Underwriters, if any, and their respective counsel, agents and representatives, and the Company will not file any registration statement or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference) to which any Selling Holder or Underwriter shall reasonably object;
3.1.2 (d) Notify the Selling Holders requesting such registration and (if requested) confirm such advice in writing, as soon as practicable after notice thereof is received by the Company (i) when the registration statement or any amendment thereto has been filed or becomes effective, the prospectus or any amendment or supplement to the prospectus has been filed, (ii) of any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information, (iii) if at any time the representations and warranties of the Company contemplated by Section 5.01 cease to be true and correct and (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;
(e) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued, or, to the Company's knowledge, threatened to be issued, by the Commission and use its best efforts to prevent the entry of such stop order or to remove it if entered.
(f) prepare and file with the Commission such amendments and amendments, post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder necessary to keep the Registration Statement such registration statement effective until for a period of not less than 120 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement are registration statement have been sold or withdrawn, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable), cause the prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended plan methods of distribution disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectusregistration statement;
3.1.3 prior (g) furnish to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to each Selling Holder requesting such registration and the Underwritersmanaging Underwriter, if any, and the Holders of Registrable Securities included in such Registrationwithout charge, one signed copy and such Holders’ legal counsel, number of conformed copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to thereto, the prospectus included in such Registration Statement registration statement (in including each case including all exhibits thereto preliminary prospectus) and any amendments or supplements thereto, any documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), therein and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders Selling Holder or such managing Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned (it being understood that the Company consents to the use of the prospectus (including the preliminary prospectus) and any amendment or supplement thereto by the Selling Holder requesting such Holders;
3.1.4 prior to any public registration and the managing Underwriter, if any, in connection with the offering and sale of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement prospectus or any amendment or supplement thereto);
(h) The Company will use its best efforts to qualify the Registrable Securities for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; provided, provided that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(h), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(i) The Company will as promptly as is practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered under the Securities Act, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders will deliver to the Company all copies, other than permanent file copies then otherwise so subject;in the possession of Selling Holders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Selling Holders such supplemented or amended prospectus.
3.1.5 cause all (j) The Company will enter into customary agreements (including an underwriting agreement in customary form, including customary representations, warranties, covenants, conditions and indemnities) and take such other actions as are required or reasonably requested by the Selling Holders or the managing Underwriter in order to expedite or facilitate the sale of such Registrable Securities.
(k) At the request of any Underwriter in connection with an underwritten offering the Company will furnish an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters (and updates thereof) from the Company's independent public accountants covering such customary matters as the managing Underwriter may reasonably request.
(l) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post effective amendment.
(m) The Company shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Selling Holder or Underwriter in connection with such registration statement.
(n) The Company shall cause the Registrable Securities included in any registration statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;, or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify.
3.1.6 (o) The Company shall provide a CUSIP number, registrar and transfer agent or warrant agent, as applicable, and registrar for all such the Registrable Securities no included in any registration statement not later than the effective date of such Registration Statement;registration statement.
3.1.7 advise (p) The Company shall cooperate with each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of Selling Holder and each Underwriter participating in the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller disposition of such Registrable Securities or its counsel;and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.
3.1.9 notify (q) The Company shall during the Holders at any time period when a Prospectus relating to such Registration Statement the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;Exchange Act.
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the r) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of s) The Company will use its best efforts to cause all such Registrable Securities involving gross proceeds and, in excess the event of $25,000,000a public offering of Series A Preferred Stock, use its reasonable efforts the Series A Preferred Stock (subject to make available senior executives applicable listing requirements), to be listed on each securities exchange or quoted on each inter-dealer quotation system on which the Common Stock is then listed or quoted. The Company may require Selling Holders promptly to furnish in writing to the Company such information regarding such Selling Holders, the plan of distribution of the Company to participate in customary “road show” presentations that Registrable Securities and other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (Db Capital Partners Inc)
Filings; Information. Whenever the Company is required to effect or cause the registration of any the offer and sale of Registrable Securities pursuant to Section 22.1 or 2.2 hereof, the Company shall will use its best efforts to effect the Registration to permit registration of the offer and the sale of such Registrable Securities in accordance with the intended plan method(s) of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company promptly will prepare and file with the Commission as soon as practicable a Registration Statement with respect to the offer and sale of such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the completion of the distribution contemplated thereby; provided, however, the Company shall not be required to keep such Registration Statement effective for more than 120 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold;, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable).
3.1.2 (b) The Company promptly will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Statement as may be requested by the Holders or any Underwriter of Registrable Securities or necessary to keep such Registration Statement effective for as may be long as such registration is required by the rules, regulations or instructions applicable to remain effective pursuant to the registration form used terms hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Company or by Securities Act; and comply with the provisions of the Securities Act or rules and regulations thereunder applicable to keep it with respect to the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold during the applicable period in accordance with the intended plan methods of distribution disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectus;.
3.1.3 (c) The Company, at least ten (10) days prior to filing a Registration Statement or prospectus, at least five (5) days prior to filing a Prospectus or any amendment or supplement theretoto such Registration Statement or Prospectus, will furnish without charge to the Underwriters(i) each Selling Holder, (ii) not more than one counsel representing all Selling Holders, to be selected by a majority-in-interest of such Selling Holders, and (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, Registration Statement copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by each of the foregoing within five (5) days after delivery (except that such review and approval of any Prospectus or any amendment and or supplement to such Registration Statement or Prospectus must be within three (3) days after delivery), and thereafter, furnish to such Selling Holders, counsel and Underwriters, if any, for their review and comment such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), ) and such other documents or information as the such Selling Holders, counsel or Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by Securities; provided, however, that notwithstanding the foregoing, if the Company intends to file any Prospectus, Prospectus supplement or Prospectus sticker which does not make any material changes in the documents already filed (including, without limitation, any Prospectus under Rule 430A or 424(b)), then the counsel for the Selling Holders will be afforded such Holders;
3.1.4 opportunity to review such documents prior to filing consistent with the time constraints involved in filing such document, but in any public offering event no less than one day.
(d) The Company promptly will notify each Selling Holder of Registrable Securities(and in any event within 24 hours of the receipt of) any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it at the earliest possible moment if entered.
(e) On or prior to the date on which the Registration Statement is declared effective by the Commission, the Company will use its best all reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may requestrequests, and (ii) take such action necessary file documents required to cause register such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all (f) The Company will notify each Selling Holder, Selling Holders' counsel and any Underwriter promptly (and in any event within 24 hours) and (if requested by any such Registrable Securities Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information to be listed on each securities exchange included in any Registration Statement or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent Prospectus or warrant agentotherwise, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, (iii) of the issuance by the Commission of any stop order by the Commission suspending the effectiveness of such a Registration Statement or the initiation or threatening of any proceeding proceedings for such purpose and promptly use its reasonable best efforts to prevent that purpose, (iv) of the issuance by any state securities commission or other regulatory authority of any stop order suspending the qualification or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing exemption from qualification of any of the Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose, and (v) of the happening of any event which makes any statement made in a Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or related Prospectus or any document that is incorporated or deemed to be incorporated by reference into therein untrue or which requires the making of any changes in such Registration Statement, Prospectus or documents so that they 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 in the Registration Statement or Prospectusand Prospectus not misleading in light of the circumstances in which they were made; and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a copy thereof supplement or amendment to each seller such Prospectus so that, as thereafter deliverable to the Buyers of such Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) The Company will make generally available an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than 90 days after the end of the 12-month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and otherwise complies with Rule 158 under the Securities Act.
(h) If requested by the managing Underwriter or Underwriters, Selling Holders' counsel, or any Selling Holder, the Company will, unless otherwise advised by counsel, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing Underwriter or Underwriters requests, or Selling Holders' counsel requests, to be included therein, including, without limitation, with respect to the Registrable Securities being sold by such Selling Holder to such Underwriter or Underwriters, the purchase price being paid therefor by such Underwriter or Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such Prospectus supplement or post-effective amendment.
(i) The Company will enter into customary agreements reasonably satisfactory to the Company (including, if applicable, an underwriting agreement in customary form and which is reasonably satisfactory to the Company) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (the Selling Holders, at their option, may require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such Underwriters also be made to and for the benefit of such Selling Holders).
(j) The Company will make available to each Selling Holder (and will deliver to their counsel) and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel;
3.1.9 notify counsel or auditors and will also make available for inspection at reasonable times at the Holders at Company's offices by any time when a Prospectus relating Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement.
(k) In connection with an underwritten offering, the Company will participate, to the extent reasonably requested by the managing Underwriter or Underwriters for the offering or the Selling Holders, in customary efforts to sell the securities under the offering, including, without limitation, participating in "road shows"; provided that the Company shall not be obligated to participate in more than two such selling efforts in any 12-month period.
(l) The Company, during the period when the Prospectus is required to be delivered under the Securities Act, promptly will file all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then Exchange Act.
(m) The Company will use all reasonable efforts to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” cold comfort letter from the Company’s 's independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters cold comfort letters, as the managing Underwriter Selling Holders may reasonably request, and . The Company may be found reasonably satisfactory require each Selling Holder to a majority-in-interest promptly furnish in writing to the Company such information regarding the distribution of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing as the Company for the purposes of such Registration, addressed may from time to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may time reasonably request and such other information as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority legally required in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offeringconnection with such registration including, enter into and perform its obligations under an underwriting agreementwithout limitation, in usual and customary form, with the managing Underwriters of all such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions information as may reasonably be requested by the HoldersCommission or the National Association of Securities Dealers, Inc. The Company may exclude from such Registration Statement any Holder who fails to provide such information. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in connection Section 3.1(f) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(f) hereof to the date when the Company shall make available to the Selling Holders covered by such Registration Statement a Prospectus supplemented or amended to conform with such Registrationthe requirements of Section 3.1(f) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Danskin Investors LLC)
Filings; Information. Whenever In connection with a Registration pursuant to Section 2.01 hereof, if a Registration Statement is filed the Company is required will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such requesttherewith:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by for such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, period as may be requested by reasonably necessary to effect the Holders or any Underwriter sale of such securities, but in no event longer than the date on which all of the Registrable Securities or as may be required by sold without volume limitations under the rulesprovisions of SEC Rule 144.
(b) The Company will, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(c) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued or, to the Company’s knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(d), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Company will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it shall receive make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice from the Company of the occurrence of any event of the kind described in the preceding sentence, the Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Company, the Selling Holders will deliver to the Company all copies, other than permanent file and then in the possession of Selling Holders, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the Commission suspending number of days during the effectiveness period from and including the date of the giving of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior notice to the filing of any Registration Statement date when the Company shall make available to the Selling Holders such supplemented or Prospectus amended prospectus.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller facilitate the sale of such Registrable Securities or its counsel;Securities.
3.1.9 notify (g) At the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening request of any event as a result Underwriter in connection with an underwritten offering, the Company will furnish (i) an opinion of which the Prospectus included in such Registration Statementcounsel, as then in effect, includes a Misstatement, and then addressed to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, covering such customary matters as the managing Underwriter may reasonably request and any attorney (ii) a comfort letter or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such customary matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the (h) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, i) The Company will use its commercially reasonable efforts to make available senior executives of cause all such Registrable Securities to be listed on each securities exchange or quoted on each inter-dealer quotation system or over-the-counter bulletin board on which the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationCommon Stock is then listed or quoted.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect the registration of any Stockholder requests that any -------------------- Registrable Securities Shares be registered pursuant to Section 2, 2.2 hereof or requests the filing of the Shelf Registration the Company shall will use its best efforts to effect the Registration to permit registration and the sale of such Registrable Securities Shares in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such requestrequest and the Shelf Registration:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Shares to be registered thereunder in accordance with respect to such Registrable Securities the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered for, in the case of a Shelf Registration, a period of not less than two years and in the case of a registration pursuant to Section 2.2 for a period of not less than 270 days; provided that if the Company shall furnish to -------- the Stockholder(s) making a request pursuant to Section 2.2 a certificate signed by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments either its Chairman, Vice Chairman or President stating that in his or her good faith judgment it would be significantly disadvantageous to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by its stockholders for such a registration statement to be filed as expeditiously as possible, the Securities Act or rules and regulations thereunder Company shall have a period of not more than 90 days within which to keep file such registration statement measured from the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold date of receipt of the request in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Section 2.2.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Stockholder and each Underwriter, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as registration statement a proposed to be filed, and thereafter furnish to such Selling Stockholder and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Stockholder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities Shares owned by such Holders;Selling Stockholder.
3.1.4 prior (c) After the filing of the registration statement, the Company will promptly notify each Selling Stockholder of any stop order issued or threatened by the Commission and take all reasonable actions required to any public offering prevent the entry of Registrable Securities, such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement Shares under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Stockholder reasonably (in light of their such Selling Stockholder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Stockholder to consummate the disposition of the Registrable Shares owned by such Registrable Securities in such jurisdictionsSelling Stockholder; provided, provided that the Company shall will not be required to (A) qualify -------- generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (e) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agentSelling Stockholder, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to Registrable Shares owned by such Registration Statement Selling Stockholder is required to be delivered under the Securities Act, of the happening occurrence of any an event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Shares, such prospectus will not contain an 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 promptly make available to each Selling Stockholder any such supplement or amendment.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Shares.
(g) The Company will make available for inspection by any Selling Stockholder, any Underwriter participating in such disposition and any attorney, accountant or other professional retained by any such Selling Stockholder or Underwriter (collectively, the "Inspectors") all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable their to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementCompany determines, in form good faith, to be confidential and substance reasonably satisfactory which it notifies the Inspectors are Confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Selling Stockholder agrees 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 Company or its Affiliates unless and until such is made generally available to the public. Each Selling Stockholder further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, prior at its expense, to undertake appropriate action to prevent disclosure of the records deemed confidential.
(h) The Company will furnish to each Selling Stockholder and to each Underwriter, if any, a signed counterpart, addressed to such Selling Stockholder or Underwriter, of (i) an opinion or opinions of counsel to the release Company and (ii) a comfort letter or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the holders of a majority of Registrable Shares included in such offering or the managing Underwriter may therefor reasonably requestrequests.
(i) The Company will otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder Act.
(or any successor rule promulgated thereafter j) The Company will use its best efforts to cause all such Registrable Shares to be listed on each securities exchange on which similar securities issued by the Commission);
3.1.15 if Company are then listed. The Company may require each Selling Stockholder to promptly furnish in writing to the Registration involves Company such information regarding the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives distribution of the Registrable Shares as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration. Each Selling Stockholder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 2.5(e) hereof, such Selling Stockholder will forthwith discontinue disposition of Registrable Shares pursuant to the registration statement covering such Registrable Shares until such Selling Stockholder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 2.5(e) hereof, and, if so directed by the Company, such Selling Stockholder will deliver to the Company all copies, other than permanent file copies then in such Selling Stockholder's possession, of the most recent prospectus covering such Registrable Shares at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 2.5(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 2.5(e) hereof to the date when the Company shall make available to the Selling Stockholders a prospectus supplemented or amended to conform with the requirements of Section 2.5(e) hereof.
Appears in 1 contract
Filings; Information. Whenever the Company AEC is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1, the Company shall AEC will use its best reasonable efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) AEC will as expeditiously as possible (and in no event more than forty-five (45) days from the date of receipt of written request from the Purchaser pursuant to Section 2.1(a) to register Registrable Securities) prepare and file with the Commission as soon as practicable a Registration Statement registration statement on Form S-3 (if use of such form is then available to AEC pursuant to the rules of the Commission and, if not, on such other form promulgated by the Commission for which AEC then qualifies and which counsel for AEC shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of such Registrable Securities Securities), and use its commercially reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable (pursuant to Rule 415 under the Securities covered by such Registration Statement have been sold;
3.1.2 Act or otherwise), and AEC will as expeditiously as possible prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by the Holders necessary to keep such registration statement effective, for a period of not less than: (i) twenty four (24) consecutive months, or any Underwriter (ii) with respect to an underwritten offering of Registrable Securities or as may be required by Securities, ninety (90) days after the rules, regulations or instructions applicable to commencement of the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until distribution of all Registrable Securities covered by such Registration Statement are sold registration statement (but not before the expiration of the period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended plan methods of distribution disposition by the Purchaser set forth in such Registration Statement or supplement to the Prospectus;registration statement.
3.1.3 (b) AEC will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the UnderwritersPurchaser, one firm of counsel representing the Purchaser, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by the foregoing, and thereafter furnish to the Purchaser, its counsel and each Underwriter, if any, for their review and comment such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Purchaser, counsel or the legal counsel for any such Holders each Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, AEC will promptly notify the Purchaser of any stop order issued or threatened by the Commission in connection therewith and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) AEC will use its best reasonable efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Purchaser may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company AEC and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Purchaser to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, provided that the Company shall AEC will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be (C) consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction. 15II
3.1.5 cause all such (e) AEC will immediately notify the Purchaser upon the occurrence of any of the following events in respect of a registration statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities; (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent Commission or warrant agent, as applicable, and registrar for all such Registrable Securities no later than any other federal or state governmental authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the registration statement for amendments or supplements to the registration statement or related prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such Registration Statement the registration statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as which makes any statement made in the registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in the registration statement, related prospectus or documents so that, in the case of the registration statement, it will not contain any untrue statement of a result of which material fact or omit to state any material fact required to be stated therein or necessary to make the Prospectus included in such Registration Statement, as then in effect, includes a Misstatementstatements therein not misleading, and then to correct such Misstatement as set forth that in Section 3.4 hereof;
3.1.10 permit a representative the case of the Holders (such representative related prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be selected by a majority stated therein or necessary to make the statements therein, in the light of the participating Holderscircumstances under which they were made, not misleading; and (vi) AEC s reasonable determination that a post-effective amendment to the registration statement would be appropriate; and AEC will promptly make available to the Purchaser any such supplement or amendment to the related prospectus.
(f) AEC will enter into customary agreements (including, if applicable, an underwriting agreement in customary form and which is reasonably satisfactory to AEC) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (the Purchaser may, at its option, require that any or all of the representations, warranties and covenants of AEC or to or for the benefit of such Underwriters also be made to and for the benefit of the Purchaser), .
(g) AEC will make available to the UnderwritersPurchaser (and will deliver to Purchasers's counsel) and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and AEC, its counsel or auditors and will also make available for inspection by the Purchaser, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by the Purchaser or such Holders or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of AEC (collectively, the "Records") as shall be reasonably necessary to participate, at each such person’s own expense, in the preparation of the Registration Statementenable them to exercise their due diligence responsibility, and cause the Company’s officers, directors AEC's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementregistration statement. Records which AEC determines, in form good faith, to be confidential and substance reasonably satisfactory which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the Companydisclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided that prior to any disclosure or release pursuant to clause (ii), the release or disclosure Inspectors shall provide AEC with prompt notice of any such information;
3.1.11 obtain request or requirement so that AEC may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided further, that if failing the entry of a “comfort” letter protective order or the waiver by AEC permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Purchaser agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third 15JJ party who, insofar as is known to the Company’s independent registered public accountants Purchaser after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to AEC) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the event securities of AEC or its Affiliates unless and until such information is made generally available to the public. The Purchaser further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to AEC and allow AEC, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(h) AEC will furnish to the Purchaser and to each Underwriter, if any, a signed counterpart, addressed to the Purchaser or such Underwriter, of (1) an Underwritten Registrationopinion or opinions of counsel to AEC, and (2) a comfort letter or comfort letters from AEC's independent public accountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the Purchaser or the managing Underwriter may therefor reasonably requestrequests.
(i) AEC will otherwise comply with all applicable rules and regulations of the Commission, including, without limitation, compliance with applicable reporting requirements under the Exchange Act, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) months, beginning within three (3) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder Act.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 j) AEC will (i) if the Registration involves Common Stock shall be listed on the Registration New York Stock Exchange or the American Stock Exchange at the time of Registrable Securities involving gross proceeds in excess effectiveness of $25,000,000such registration statement, use its commercially reasonable efforts to make available senior executives cause all such Registrable Securities to be listed on such exchange (if the listing of such Registrable Securities is then permitted under the rules of such exchange) and, if not, (ii) use commercially reasonable efforts to secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Company Commission, and, in the case of clause (ii) above, to participate in customary “road show” presentations that may be arrange for at least two market makers to register as such with respect to such Registrable Securities with the National Association of Securities Dealers, Inc. (the "NASD").
(k) AEC will appoint a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement.
(l) In connection with an underwritten offering, AEC will participate, to the extent reasonably requested by the managing Underwriter for the offering or the Purchaser, in customary efforts to sell the securities under the offering, including, without limitation, participating in "road shows"; provided that AEC shall not be obligated be to participate in more than one such offering in any Underwritten Offering; and
3.1.16 otherwise, twelve (12)-month period and any such participation by AEC shall be at the expense of the managing Underwriter or the Purchaser unless AEC shall also be offering securities in good faith, cooperate such underwritten offering. AEC may require the Purchaser to promptly furnish in writing to AEC such information regarding the distribution of the Registrable Securities as AEC may from time to time reasonably with, request and take such customary actions other information as may reasonably be legally required in connection with such registration including, without limitation, all such information as may be requested by the Holders, Commission or the NASD. If the Purchaser fails to provide such information requested in connection with such Registrationregistration within ten (10) business days after receiving such written request, then AEC may cease pursuit of such registration, and the Demand Registration request in respect of which such registration was being pursued shall count toward the limit of three Demand Registration requests hereunder. 15KK The Purchaser agrees that, upon receipt of any notice from AEC of the happening of any event of the kind described in Section 3.1(e) hereof, the Purchaser will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until the Purchaser's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof, and, if so directed by AEC, the Purchaser will deliver to AEC all copies, other than permanent file copies then in the Purchaser's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event AEC shall give such notice, AEC shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when AEC shall make available to the Purchaser a prospectus supplemented or amended to conform with the requirements of Section 3.1(e) hereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Andrea Electronics Corp)
Filings; Information. Whenever In connection with the Company is required registration of --------------------- Registrable Securities pursuant to Section 2.1 and Section 2.2 hereof, HT will use all commercially reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) HT will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which HT then qualifies and which counsel for HT shall deem appropriate and available for the sale of the Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended method of distribution thereof, and use its commercially reasonable efforts to cause such filed registration statement to become and remain effective with respect to any Demand Registration or Piggyback Registration, for such period, equal to at least ninety (90) days, as may be reasonably necessary to effect the sale of such securities, HT may require Selling Holders to promptly furnish in writing to HT such information regarding such Selling Holders, the plan of distribution set forth of the Registrable Securities and other information as HT may be legally required to disclose in connection with such Registration Statement or supplement to the Prospectus;registration.
3.1.3 (b) HT will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holders;.
3.1.4 prior (c) After the filing of the registration statement, HT will promptly notify the Selling Holders of any stop order issued or, to any public offering of Registrable SecuritiesHT's knowledge, threatened to be issued by the Commission and use its best commercially reasonable efforts to prevent the entry of such stop order or to remove it if entered.
(id) register or In addition to the requirements imposed on HT elsewhere herein, HT will use its commercially reasonable efforts to qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included may reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; provided, provided that the Company shall HT will not be required to (i) qualify to generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.1(d), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) HT will as promptly as is practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not then otherwise so subject;
3.1.5 cause all contain an 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 were made, not misleading and promptly make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, the Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by HT, the Selling Holders shall deliver to HT all copies, other than permanent file copies then in the possession of the Selling Holders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event HT shall give such notice, HT shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.1(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when HT shall make available to the Selling Holders such supplemented or amended prospectus. Furthermore, in the event HT shall give such notice, HT shall, as promptly as is practical, prepare 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, and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) HT will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions (including, without limitation, participation in road shows and investor conference calls) as are required in order to expedite or facilitate the sale of such Registrable Securities.
(g) At the request of any Underwriter in connection with an underwritten offering, HT will furnish (i) an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from HT's independent public accountants covering such customary matters as the managing Underwriter may reasonably request.
(h) If requested by the managing Underwriter or any Selling Holder, HT shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post effective amendment.
(i) HT shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate ---------- documents and properties of HT (collectively, the "Records"), as shall ------- reasonably be necessary to enable them to exercise their due diligence responsibility, and cause HT's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, HT shall not be required to provide any information under this subparagraph (i) if (A) HT believes, after consultation with counsel for HT, that to do so would cause HT to forfeit an attorney-client privilege that was applicable to such information or (B) if HT has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise.
(j) HT shall cause the Class A Common Shares included in any registration statement to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company HT are then listed;, if the Registrable Securities so qualify.
3.1.6 (k) HT shall provide a transfer agent or warrant agent, as applicable, and registrar CUSIP number for all such the Registrable Securities no included in any registration statement not later than the effective date of such Registration Statement;registration statement.
3.1.7 advise (l) HT shall cooperate with each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of Selling Holder and each Underwriter participating in the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.
(m) HT shall participate in any financial roadshow organized for purposes of publicizing the sale or its counsel;other disposition of the Registrable Securities. Such participation shall include, but not be limited to, dispatch by HT of personnel to assist in each presentation made during the roadshow, and provision of HT data needed for purposes of the roadshow.
3.1.9 notify (n) HT shall, during the Holders at any time period when a Prospectus relating to such Registration Statement the prospectus is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative promptly file all documents required to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection filed with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale Commission pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a13(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationExchange Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Hersha Hospitality Trust)
Filings; Information. Whenever Subject to the Company is required to effect limitations in Article II, whenever the registration of Holders request that any Registrable Securities be registered pursuant to Section 2, 2.02 hereof:
(a) the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof will as expeditiously as practicable, and in connection with any such request:
3.1.1 practicable prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by for a period of the lesser of 90 days and such Registration Statement have been soldperiod as is necessary to complete such offering;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by (b) the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersHolders and each managing underwriter, if any, copies thereof, and thereafter furnish to the Holders and each such underwriter, if any, such number of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Holders of Registrable Securities included in or such Registration or the legal counsel for any such Holders underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such HoldersSecurities;
3.1.4 prior (c) after the filing of the registration statement, the Company will promptly notify the Holders of any stop order issued or, to any public offering the knowledge of Registrable Securitiesthe Company, use its best efforts threatened to be issued by the Commission and take all necessary actions required to prevent the entry of such stop order or to remove it if entered;
(id) register or the Company will endeavor to qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement or the managing underwriter, if any, reasonably (in light of their the Holders' intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsrequests; provided, however, that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subjectjurisdiction;
3.1.5 cause all (e) the Company shall, as promptly as practicable, notify the Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an underwriter or dealer, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading, and as promptly as practicable make available to the Holders and to the underwriters any such supplement or amendment. The Holders agree that, upon receipt of any notice from the Company of the happening of any event of the kind described in the preceding sentence, the Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Holders will deliver to the Company all copies, other than permanent file copies then in the Holders' possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Holders such supplemented or amended prospectus;
(f) the Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the sale of such Registrable Securities;
(g) the Company will furnish to the Holders and to each managing underwriter, if any, a signed counterpart, addressed to the Holders and each underwriter, of (i) an opinion or opinions of counsel to the Company (including a "Rule 10b-5" opinion) and (ii) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters delivered to such parties;
(h) commencing within three months after the effective date of the registration statement, the Company will make generally available to its securityholders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder;
(i) the Company will use its best efforts to cause all Common Shares (including, without limitation, all Registrable Securities) to be listed on each securities exchange exchange, if any, or automated the National Association of Securities Dealers' interdealer quotation system on which similar securities issued by the Company are then listed;; and
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, (j) Management of the issuance of any stop order by Company and the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Participating Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, will cooperate in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if anyselling effort, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request Company will coordinate and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to conduct a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “"road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, " in connection with such Registrationoffering. The Company may require the Holders promptly to furnish in writing to the Company such information regarding the Holders' plan of distribution of the Registrable Securities and other information as the Company may from time to time reasonably request or as may be legally required in connection with such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (James River Corp of Virginia)
Filings; Information. Whenever In connection with the Shelf Registration Statement pursuant to Section 2.01 hereof, the Company is required and Shareholder agree as follows:
(a) Shareholder will notify Company in writing of its intention to effect the registration of any sell Registrable Securities pursuant to Section 2the Shelf Registration Statement at least 10 days prior to the proposed date of such sale. The Company shall be entitled, by notifying Shareholder within 5 days of receiving the aforementioned notice from Shareholder, to postpone or suspend for a reasonable period of time (in no event to exceed 45 days) the offering or sale of any Registrable Securities, or the filing of any amendment or supplement to the Shelf Registration Statement, if the Company shall determine in good faith that (i) such offering, sale or filing will interfere with any pending or contemplated financing, merger, sale or acquisition of assets, recapitalization or other material corporate action of the Company or (ii) the filing of such amendment or supplement would require the Company to include therein material information that has not theretofore been made public and which the Company is not then reasonably prepared to disclose. If the Company elects to so postpone or suspend the offering or sale of any Registrable Securities, or the filing of any amendment or supplement to the Shelf Registration Statement, the Company shall use its best efforts shall, to effect the extent necessary, amend or supplement the Shelf Registration Statement to permit the offering and sale of such Registrable Securities in accordance with within 45 days of receiving the intended plan of distribution thereof as expeditiously as practicableaforementioned notice from Shareholder.
(b) The Company will, if requested, prior to filing the Shelf Registration Statement or any amendment or supplement thereto, furnish to Shareholder and each applicable managing Underwriter, if any, without charge, copies thereof, and thereafter furnish to Shareholder and each such Underwriter, if any, without charge, such number of copies of such registration statement, amendment and supplement thereto (in connection with each case including all exhibits thereto and documents incorporated by reference therein) and the prospectus included in such registration statement (including each preliminary prospectus) as Shareholder or each such Underwriter may reasonably request in order to facilitate the sale of the Registrable Securities.
(c) After the filing of the Shelf Registration Statement, the Company will promptly notify Shareholder of any such request:
3.1.1 prepare and file with stop order issued or, to the Company's knowledge, threatened to be issued by the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause prevent the entry of such stop order or to remove it if entered at the earliest possible date.
(d) The Company will use its reasonable best efforts in cooperation with Shareholder and the applicable Underwriters or agents, as the case may be, to qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as Shareholder reasonably requests in writing; provided that the Company will not be required to (1) qualify generally to do business in any jurisdiction as a foreign corporation or as a dealer in securities where it would not otherwise be required to qualify but for this paragraph (d), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction.
(e) The Company will as promptly as is practicable notify Shareholder, at any time when a prospectus relating to the sale of Registrable Securities is required to be delivered under the 1933 Act, upon the occurrence of any circumstances or events requiring the preparation of a supplement or amendment to the Shelf Registration Statement or the prospectus included therein so that, as thereafter delivered to become effective the purchasers of such Registrable Securities, such Shelf Registration Statement and remain effective until all prospectus will not contain an 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 were made) not misleading and shall as promptly as practicable make available to Shareholder and to the Underwriters, if applicable, any such supplement or amendment. Shareholder agrees that, upon receipt of any notice from the Company of the occurrence of any circumstance or event of the kind described in the preceding sentence, Shareholder will forthwith discontinue the offer and sale of Registrable Securities covered by such pursuant to the Shelf Registration Statement have been sold;
3.1.2 prepare until receipt by Shareholder and file with the Commission Underwriters, if applicable, of the copies of such amendments and post-effective amendments supplemented or amended Shelf Registration Statement and/or prospectus and, if so directed by the Company, Shareholder will deliver to the Company all copies, other than permanent file copies then in Shareholder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice.
(f) The Company will deliver to Shareholder and each Underwriter or agent participating in an offering pursuant to the Shelf Registration Statement, without charge, as many copies of each preliminary prospectus as Shareholder or such Underwriter or agent may reasonably request in writing, and such supplements the Company hereby consents (except during the continuance of any circumstance or event described in Sections 3.01(a), (c) or (e)) to the Prospectususe of such copies for purposes permitted by the 1933 Act. The Company will deliver to Shareholder and each Underwriter or agent participating in such offering, without charge, from time to time during the period when a prospectus is required to be delivered under the 1933 Act, such number of copies of such prospectus (as supplemented or amended) as Shareholder or such Underwriter or agent may reasonably request in writing.
(g) The Company will use its reasonable best efforts to comply with the 1933 Act and the rules and regulations of the Commission thereunder, and the 1934 Act and the rules and regulations of the Commission thereunder so as to permit the completion of the distribution of the Registrable Securities pursuant to the Shelf Registration Statement in accordance with the intended method or methods of distribution contemplated in the prospectus relating thereto.
(h) Upon the written request of Shareholder or the managing Underwriter or agent, as the case may be requested by the Holders be, or any Underwriter of Registrable Securities or as may be if required by the rules, regulations or instructions applicable to the registration form used by the Company Company, or by the Securities 1933 Act or by any other rules and regulations thereunder in connection with the offering of Registrable Securities pursuant to keep the Shelf Registration Statement, the Company will prepare a prospectus supplement that complies with the 1933 Act and the rules and regulations of the Commission thereunder and that sets forth the aggregate amount of the Registrable Securities being sold, the name or names of any Underwriters or agents participating in the offering, the price at which the Registrable Securities are to be sold, any discounts, commissions or other items constituting compensation, and such other information as Shareholder or the managing Underwriter or agent, as the case may be, and the Company deem appropriate in connection with the offering and sale of the Registrable Securities prior to its being used or filed with the Commission.
(i) The Company may require Shareholder to promptly furnish in writing to the Company such information regarding the Shareholder, the distribution of the Registrable Securities and other matters as may be required by applicable law, rule or regulation for inclusion in the Shelf Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, (or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement ).
(in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement j) The Company will enter into customary agreements (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included an underwriting agreement in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in customary form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registrationunderwritten offering pursuant to Section 2.01(b)) and take such other actions as are reasonably required in order to expedite or facilitate the sale of such Registrable Securities.
(k) The Company will furnish to Shareholder and to each Underwriter in an underwritten offering a signed counterpart, addressed to Shareholder or such Underwriter, of (1) an opinion or opinions of counsel to the Company and (2) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by “comfort” opinions or comfort letters in similar registered offerings, as the case may be, as Shareholder or the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;requests.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the (l) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Shelf Registration Statement Statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities 1933 Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, m) The Company will use its reasonable efforts to make available senior executives of cause all such Registrable Securities to be listed for trading on the Nasdaq National Market or on each securities exchange on which similar securities issued by the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationare then listed.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect the registration of Shareholders request that any Registrable Securities Stock be registered pursuant to Section 25.1 or Section 5.2 hereof, the Company shall will use its best efforts to effect the Registration to permit registration and the sale of such Registrable Securities Stock in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Stock to be registered thereunder in accordance with respect to such Registrable Securities the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with for a period of not less than 270 days; PROVIDED that if the Commission such amendments and post-effective amendments Company shall furnish to the Registration Statement, and such supplements Shareholders making a request pursuant to Section 5.1 a certificate signed by either its Chairman or the Prospectus, as may Vice Chairman stating that in the good faith judgment of the Board of Directors it would be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable significantly disadvantageous to the registration form used by the Company or by its shareholders for such a registration statement to be filed as expeditiously as possible, the Securities Act or rules and regulations thereunder Company shall have a period of not more than 90 days within which to keep file such registration statement measured from the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold date of receipt of the request in accordance with the intended plan of distribution set forth Section 5.1. The right to defer such filing may not be exercised more than one time in such Registration Statement or supplement to the Prospectus;any twelve month period.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder and each Underwriter, if any, and of the Holders of Registrable Securities included in Stock covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, and thereafter furnish to such Selling Holder and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities Stock owned by such Holders;Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the registration statement, the Company will promptly notify each Selling Holder of Registrable Securities, Stock covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement Stock under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement Stock to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of the Registrable Stock owned by such Registrable Securities in such jurisdictionsSelling Holder; provided, PROVIDED that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (e) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable SecuritiesStock, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Stock, such prospectus will not contain an 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 promptly prepare and make available to each Selling Holder any such supplement or amendment.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Stock.
(g) The Company will make available for inspection by any Selling Holder of such Registrable Stock, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementCompany determines, in form good faith, to be confidential and substance reasonably satisfactory which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Selling Holder of such Registrable Stock agrees 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 Company or its Affiliates unless and until such is made generally available to the public. Each Selling Holder of such Registrable Stock further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, prior at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to each Selling Holder and to each Underwriter, if any, a signed counterpart, addressed to such Selling Holder or Underwriter, of (i) an opinion or opinions of counsel to the release Company and (ii) a comfort letter or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the Majority Holders of the issue of Registrable Stock included in such offering or the managing Underwriter may therefor reasonably requestrequests.
(i) The Company will otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder Act.
(or any successor rule promulgated thereafter j) The Company will use its best efforts to cause all such Registrable Stock to be listed on each securities exchange on which similar securities issued by the Commission);
3.1.15 if the Registration involves the Registration Company are then listed. The Company may require each Selling Holder of Registrable Securities involving gross proceeds Stock to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives the Company such information regarding the distribution of the Registrable Stock as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information relating to such Selling Holder as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 5.4(e) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Stock pursuant to the registration statement covering such Registrable Stock until such Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 5.4(e) hereof, and, if so directed by the Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent prospectus covering such Registrable Stock at the time of receipt of such notice. If the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 5.4(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 5.4(e) hereof to the date when the Company shall make available to the Selling Holders of Registrable Stock covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 5.4(e) hereof.
Appears in 1 contract
Samples: Shareholders Agreement (Amerin Corp)
Filings; Information. Whenever In connection with the registration of Registrable Securities pursuant to Section 2.01, Section 2.02 and Section 2.03 hereof, the Company is required will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of such securities, (ii) with respect to the Shelf Registration, until the sale of all Registrable Securities thereunder; provided, that if the Company shall furnish to the Selling Holder a certificate signed by the Company's Chairman, Chief Executive Officer, President or any Executive or Senior Vice-President stating that the Company's Board of Directors has determined in good faith that it would be detrimental or otherwise disadvantageous to the Company or its stockholders for such a registration statement to be filed as expeditiously as possible because the sale of Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the Commission such amendments and post-effective amendments public disclosure of which at the time would be materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a registration statement for a period of not more than 120 days; provided, that during any 365-day period the Company shall use its reasonable best efforts to permit a period of at least 120 consecutive days during which the Company will make a registration statement available under this Agreement; and provided, further, that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statementwould otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financials as of the end of such supplements fiscal year, the Company may delay the effectiveness of such registration statement for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year.
(b) Anything in this Agreement to the Prospectuscontrary notwithstanding, as may it is understood and agreed that the Company shall not be requested by required to keep any shelf registration effective or useable for offers and sales of the Registrable Securities, file a post effective amendment to a shelf registration statement or prospectus supplement or to supplement or amend any registration statement, if the Company is then involved in discussions concerning, or otherwise engaged in, any material financing or investment, acquisition or divestiture transaction or other material business purpose if the Company determines in good faith that the making of such a filing, supplement or amendment at such time would interfere with such transaction or purpose. The Company shall promptly give the Holders or any Underwriter of Registrable Securities or as may be required written notice of such postponement containing a general statement of the reasons for such postponement and an approximation of the anticipated delay, which delay shall last no longer than 90 days, no more than once during any 365-day period. Upon receipt by a Holder of Registrable Securities of notice of an event of the ruleskind described in this Section 3.01(b), regulations or instructions applicable to the registration form used by such Holder shall forthwith discontinue such Holder's disposition of Registrable Securities until such Holder's receipt of notice from the Company that such disposition may continue and of any supplemented or by the Securities Act or rules and regulations thereunder amended prospectus indicated in such notice. The Company shall use its reasonable best efforts to keep the Registration Statement effective until all permit sales of Registrable Securities covered by on such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;shelf registration statement for at least 120 days during any 365-day period.
3.1.3 (c) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(d) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (e) The Company will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; provided, that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(e), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(f) The Company will as promptly as is practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders will deliver to the Company all copies, other than permanent file copies then otherwise so subject;in the possession of Selling Holders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Selling Holders such supplemented or amended prospectus.
3.1.5 cause all (g) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are required in order to expedite or facilitate the sale of such Registrable Securities.
(h) At the request of any managing Underwriter in connection with an underwritten offering the Company will furnish (i) an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from the Company's independent public accountants covering such customary matters as the managing Underwriter may reasonably request.
(i) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post effective amendment.
(j) The Company shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (j) if (A) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) if either (1) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (A) or (B) such Holder of Registrable Securities requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; provided, further, however, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(k) The Company shall cause the Registrable Securities included in any registration statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;, or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify.
3.1.6 (l) The Company shall provide a transfer agent or warrant agent, as applicable, and registrar CUSIP number for all such the Registrable Securities no included in any registration statement not later than the effective date of such Registration Statement;registration statement.
3.1.7 advise (m) The Company shall cooperate with each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of Selling Holder and each Underwriter participating in the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller disposition of such Registrable Securities or its counsel;and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.
3.1.9 notify (n) The Company shall during the Holders at any time period when a Prospectus relating to such Registration Statement the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;Exchange Act.
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the o) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if rules and regulations of the Registration involves Commission thereunder. The Company may require Selling Holders promptly to furnish in writing to the Registration Company such information regarding such Selling Holders, the plan of distribution of the Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of and other information as the Company may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Filings; Information. Whenever Subject to the Company is required to effect limitations set forth in Article III, whenever a Stockholder (the registration of “Registering Stockholder”) requests that any Registrable Securities be included in a registration statement pursuant to Section 23.1 or Section 3.2, the Company shall use its reasonable best efforts to effect the Registration to permit the sale of include such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicablesuch registration statement, and in connection with any such request:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and (a) The Company shall use its reasonable best efforts and shall take all appropriate actions to cause such Registration Statement registration statement to be filed and become effective as soon as practicable. Registrations under Section 3.1 shall be on such appropriate registration form of the SEC as shall be selected by the Company.
(b) After such registration statement becomes effective, the Company shall use its reasonable best efforts and remain shall take all appropriate actions to maintain the effectiveness of such registration statement for the shorter of a period of 180 days after the effective until all Registrable Securities covered by date of such Registration Statement have been sold;
3.1.2 prepare registration statement and file such period as the Registering Stockholder may require to complete its contemplated sales in compliance with the Commission such amendments and post-effective amendments to securities laws of the Registration Statementjurisdiction in which the offering is contemplated; provided, and such supplements to the Prospectushowever, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by that the Company or by shall have no obligation to maintain the Securities Act or rules and regulations thereunder to keep effectiveness of such registration statement following the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan closing date of distribution set forth in such Registration Statement or supplement to the Prospectus;an underwritten Public Offering.
3.1.3 (c) The Company shall, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersRegistering Stockholder, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Registering Stockholder such Holders’ legal counsel, number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Holders of Registrable Securities included in Registering Stockholder or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Holders;Securities.
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (id) register or qualify After the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue filing of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; providedregistration statement, that the Company shall not be required promptly notify the Registering Stockholder of any stop order issued or, to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities the Company’s knowledge, threatened to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, Commission and registrar for take all such Registrable Securities no later than reasonable actions required to prevent the effective date entry of such Registration Statement;stop order or to remove it if entered.
3.1.7 advise each seller (e) The Company shall enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the sale of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereofincluding, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectuswithout limitation, furnish obtaining a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” comfort letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” comfort letters as the managing Underwriter Underwriters may reasonably request.
(f) The Company shall participate, and may be found reasonably satisfactory to a majority-in-interest at the request of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreementRegistering Stockholder, in usual presentations to prospective Underwriters and customary form, with investors in general regarding the managing Underwriters of such offering;Public Offering.
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12g) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, The Company shall use its reasonable best efforts to make available senior executives of cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwiseare then listed or, in good faithif not so listed, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.on a national securities exchange
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities In connection with a Demand Registration pursuant to Section 22.01 hereof, the Company shall Issuer will use its reasonable best efforts to effect effect, as promptly as is reasonably practicable, the Registration to permit registration under the sale Securities Act of such (i) all Registrable Securities in accordance with for which the intended plan of distribution thereof as expeditiously as practicablerequesting Holders have requested registration under Section 2.01(a), and (ii) subject to the restrictions set forth in Section 2.02 and 2.03, all other Registrable Securities that any Holders with rights to request registration under Section 2.01 have requested the Issuer to register by request received by the Issuer within 15 days after such Holders receive the Issuer's notice of the Demand Registration. In connection with any such request:
3.1.1 (a) The Issuer will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Issuer then qualifies and which counsel for the Issuer shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all for such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of such securities; provided that if the Issuer shall furnish to the requesting Holders a certificate signed by the Issuer's Chairman, President or any Vice-President stating that in his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer or its stockholders for such a registration statement to be filed as expeditiously as possible (because the sale of Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file registration statement or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the Commission such amendments and post-effective amendments public disclosure of which at the time would be materially prejudicial to the Issuer), the Issuer may postpone the filing or effectiveness of a registration statement for a period of not more than 90 days on one occasion in any consecutive 360-day period; and provided further, that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statementwould otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Issuer's fiscal year, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by (ii) the Securities Act or rules and regulations thereunder requires the Issuer to keep include audited financials as of the Registration Statement effective until all Registrable Securities covered by end of such Registration Statement are sold in accordance with fiscal year, the intended plan Issuer may delay the effectiveness of distribution set forth in such Registration Statement or supplement registration statement for such period as is reasonably necessary to the Prospectus;include therein its audited financial statements for such fiscal year.
3.1.3 (b) The Issuer will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(c) After the filing of the registration statement, the Issuer will promptly notify the Selling Holders of any stop order issued or, to the Issuer's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Issuer will use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, provided that the Company shall Issuer will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(d), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Issuer will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event or prospective event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it make available to the Selling Holders, and to the Underwriters any such supplement or amendment. Upon receipt of any notice from the Issuer of the occurrence of any event of the kind described in the preceding sentence, the Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and the Selling Holders will maintain the confidentiality of, and shall receive not disclose to any third party, any information contained in such notice or obtain knowledge regarding the existence thereof, provided that the Selling Holders shall be permitted to disclose such information to their representatives, affiliates or others to whom they have a contractual obligation to disclose such information, in each case who agree to be bound by this confidentiality obligation. In the event the Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the number of days during the period from and including the date of the issuance giving of any stop order such notice to the date when the Issuer shall make available to the Selling Holders such supplemented or amended prospectus. Notwithstanding the foregoing, if the Issuer shall furnish to the Selling Holders a certificate signed by the Commission suspending the effectiveness of such Registration Statement Issuer's Chairman, President or the initiation any Vice-President stating that in his or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order her good faith judgment it would be detrimental or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior otherwise disadvantageous to the filing Issuer to promptly prepare, file and/or distribute a supplemented or amended prospectus because the disclosure of any Registration Statement or Prospectus or any information in such prospectus amendment or supplement or sale of Securities covered by the related registration statement would materially interfere with any acquisition, financing or other material event which is then intended or the public disclosure of which at the time would be materially prejudicial to such Registration Statement or Prospectus or any document that is the Issuer, then the Issuer shall be permitted to be incorporated by reference into such Registration Statement or Prospectusdelay the preparation, furnish a copy thereof to each seller filing and distribution of such Registrable Securities amendment or its counsel;
3.1.9 notify supplement for a period of up to 30 days, provided that, in the Holders case of a Demand Registration which has not been effective for at any time when a Prospectus relating least 60 days and pursuant to such Registration Statement is required to be delivered under which all the Securities Actincluded therein have not been sold, if such delay exceeds a period of five business days, the happening holders of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders)Registrable Securities included in the Demand Registration may notify the Issuer in writing during the delay period that the Demand Registration is being terminated, in which case the Issuer shall not be obligated to amend or supplement the prospectus and, for purposes of Section 2.01 such Demand Registration shall not be deemed to have occurred.
(f) The Issuer will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the sale of such Registrable Securities.
(g) At the request of any Underwriter in connection with an underwritten offering the Issuer will furnish (i) an opinion of counsel, addressed to the Underwriters, if any, covering such customary matters as the managing Underwriter may reasonably request and any attorney (ii) a comfort letter or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s Issuer's independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such customary matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 (h) The Issuer will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of i) The Issuer will use reasonable best efforts to cause all such Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of be listed on each securities exchange or quoted on each inter-dealer quotation system on which the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationCommon Stock is then listed or quoted.
Appears in 1 contract
Samples: Registration Rights Agreement (Francisco Partners Lp)
Filings; Information. Whenever any Shareholder requests that any Registrable Securities be registered pursuant to Section 2.1 hereof, the Company is required will, subject to the terms and provisions hereof, use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously quickly as practicable, and in connection with any each such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;filed registration statement
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement(b) The Company will, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the Underwriterseach such Shareholder and each managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to each such Holders’ legal counselShareholder and each such Underwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and prospectus) as such other documents as the Underwriters and the Holders of Registrable Securities included in Shareholder or such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, the Company will promptly notify each such Shareholder of any stop order issued or, to the knowledge of the Company, threatened to be issued by the Commission and will promptly take all necessary actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Company will use its reasonable best efforts to (i) register or to qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in each such Registration Statement Shareholder reasonably (in light of their each such Shareholders intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsrequests; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any 7 such jurisdiction or take (iii) file any action general consent to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all (e) The Company will, as promptly as practicable, notify each such Shareholder, at any time when a prospectus relating to the registration of Registrable Securities pursuant to Article II hereof is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, if for any reason the Company are then listed;
3.1.6 provide prospectus requires a transfer agent supplement or warrant agentamendment thereto so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 light of the circumstances under which they were made, not misleading, and as promptly after it shall receive as practicable make available to each such Shareholder and to the Underwriters any such supplement or amendment. Each such Shareholder agrees that, upon receipt of any notice from the Company of the occurrence of any event of the kind described in the preceding sentence, such Shareholder will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Company, such Shareholder will deliver to the Company all copies, other than permanent file copies then in such Shareholder's possession, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of most recent prospectus covering such Registrable Securities or its counsel;
3.1.9 notify at the Holders at any time when a Prospectus relating to of receipt of such Registration Statement is required to notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be delivered under maintained effective as provided in Section 3.1(a) hereof by the Securities Act, number of days during the period from and including the date of the happening giving of any event as a result of which such notice to the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then date when the Company shall make available to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any Shareholder such representative, Underwriter, attorney supplemented or accountant in connection with the Registration; provided, that such representatives or Underwriters amended prospectus.
(f) The Company will enter into a confidentiality agreement, customary agreements (including an underwriting agreement in customary form and satisfactory in form and substance to the Company in its reasonable judgment) and take such other actions as are reasonably satisfactory required in order to expedite or facilitate the sale of such Registrable Securities, provided that any such underwriting agreement shall contain an agreement of the Underwriter(s) to indemnify and hold harmless the Company against any and all losses, claims, damages and liabilities caused by any untrue statement or alleged untrue statement of a material fact contained in any registration statement or prospectus relating to the Registrable Securities if a copy of the current prospectus, as amended and supplemented, was furnished to the Underwriter(s) and/or each such Shareholder by the Company but was not provided to a purchaser and such current prospectus would have cured the defect giving rise to such loss, claim, damage or liability, or shall contain a substantially similar agreement acceptable to the Company, prior to the release or disclosure of any such information;.
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the (g) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holdersshareholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.earning
Appears in 1 contract
Samples: Registration Rights Agreement (Insituform Technologies Inc)
Filings; Information. Whenever the Selling Shareholders request that any Registrable Securities be registered pursuant to Article II hereof, the Company is required will use its reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the and sale of such Registrable Securities in accordance with the intended plan requested method of distribution disposition thereof as expeditiously promptly as reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until for a period of not more than nine months (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement registration statement have been sold;
3.1.2 prepare sold (but not before the expiration of the period referred to in Section 4(3) of the Securities Act and file Rule 174 thereunder, if applicable)) after the date of the original filing or such other period as is necessary to comply with the Commission such amendments and post-effective amendments provisions of the Securities Act, PROVIDED that if the Company shall furnish to the Registration Statement, and such supplements to the Prospectus, as may be requested Selling Shareholders a certificate signed by the Holders Company's Chairman, President or any Underwriter of Registrable Securities Vice President stating that in his or as may her good faith judgment it would be required by the rules, regulations detrimental or instructions applicable otherwise disadvantageous to the registration form used by the Company or its shareholders for such a registration statement to be filed expeditiously, the Company shall have a period of 120 days in any twelve (12) month period (which may be extended by the Securities Act or rules and regulations thereunder Company, with the consent of the requesting Selling Shareholders, on the same basis for an additional period of 90 days) within which to keep file such registration statement measured from the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold date of the Company's receipt of the Selling Shareholders' request for registration in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Section 2.1.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Shareholder and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Shareholders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Holders of Registrable Securities included in Selling Shareholders or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, the Company will promptly notify the Selling Shareholders of any stop order issued or, to the Company's knowledge, threatened to be issued by the SEC and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Company will use its best reasonable efforts to (i) register or otherwise qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may Selling Shareholders reasonably request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the requested disposition of such the Registrable Securities in such jurisdictions; providedSecurities, PROVIDED that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (e) The Company will as promptly as practicable notify the Selling Shareholders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, promptly after it shall receive notice such prospectus will not contain an untrue statement of a material fact or obtain knowledge thereofomit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the issuance circumstances under which they were made, not misleading and promptly make available to the Selling Shareholders and to the Underwriters any such supplement or amendment. The Selling Shareholders agree that, upon receipt of any stop order notice from the Company of the occurrence of any event of the kind described in the preceding sentence, the Selling Shareholders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Commission suspending Selling Shareholders and the effectiveness Underwriters of the copies of such Registration Statement supplemented or amended prospectus. In the initiation or threatening event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.1(a) hereof by the number of any proceeding for days during the period from and including the date of the giving of such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior notice to the filing of any Registration Statement date when the Company shall make available to the Selling Shareholders such supplemented or Prospectus amended prospectus.
(f) The Company will enter into customary agreements (including an underwriting agreement having representations and closing documents consistent with underwriting agreements heretofore entered into by the Company) and take such other actions as are reasonably required in order to expedite or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller facilitate the sale of such Registrable Securities or its counsel;Securities.
3.1.9 notify (g) The Company will make available for inspection by the Holders at Selling Shareholders, any time when a Prospectus relating Underwriter participating in any disposition pursuant to such Registration Statement is required to be delivered under registration statement and any attorney, accountant or other professional retained by the Securities ActSelling Shareholders or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders Company (such representative to be selected by a majority of the participating Holders)collectively, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter "Records") as shall be reasonably necessary to participate, at each such person’s own expense, in the preparation of the Registration Statementenable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementCompany determines, in form good faith, to be confidential and substance reasonably satisfactory which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. The Selling Shareholders agree that they will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, prior at its expense, to the release or undertake appropriate action to prevent disclosure of any such information;the Records deemed confidential.
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form (h) The Company will otherwise use its reasonable efforts to comply with all applicable rules and covering such matters regulations of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably requestSEC, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the SEC thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, i) The Company will use its reasonable efforts to make available senior executives cause all such Registrable Securities to be listed on each securities exchange or trading system on which similar securities issued by the Company are then listed. The Company may require the Selling Shareholders to furnish in writing to the Company such information regarding the Selling Shareholders, the plan of distribution of the Registrable Securities and other information as the Company may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (Jones International Networks LTD /Co/)
Filings; Information. Whenever the Company is required to effect or cause the registration of any the offer and sale of Registrable Securities pursuant to Section 22.1 or 2.2 hereof, the Company shall will use its best efforts to effect the Registration to permit registration of the offer and the sale of such Registrable Securities in accordance with the intended plan method(s) of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will prepare and file with the Commission as soon as practicable a Registration Statement with respect to the offer and sale of such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the completion of the distribution contemplated thereby; provided, however, the Company shall not be required to keep such Registration Statement effective for more than 180 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold;, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable); provided, further, that with respect to a Demand Registration, the Company shall file with the Commission a Registration Statement as soon as is practicable after the date of the Request and in any event no later than 60 days after the date of the Request for the Demand Registration and shall cause such Registration Statement to be declared effective as soon as is practicable after the date of filing and in any event no later than 120 days after the date of such Request.
3.1.2 (b) The Company will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Statement as may be requested by the Holders or any Underwriter of Registrable Securities or necessary to keep such Registration Statement effective for as may be long as such registration is required by the rules, regulations or instructions applicable to remain effective pursuant to the registration form used terms hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Company or by Securities Act; and comply with the provisions of the Securities Act or rules and regulations thereunder applicable to keep it with respect to the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold during the applicable period in accordance with the intended plan methods of distribution disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectus;.
3.1.3 (c) The Company, at least ten (10) Business Days prior to filing a Registration Statement or prospectus, at least five (5) Business Days prior to filing a Prospectus or any amendment or supplement theretoto such Registration Statement or Prospectus, will furnish without charge to the Underwriters(i) each Selling Holder, (ii) not more than one counsel representing all Selling Holders ("Selling Holders Counsel"), to be selected by a majority-in-interest of such Selling Holders, and (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, Registration Statement copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by each of the foregoing within five (5) Business Days after delivery (except that such review and approval of any Prospectus or any amendment and or supplement to such Registration Statement or Prospectus must be within three (3) Business Days after delivery), and thereafter, furnish to such Selling Holders, Selling Holders Counsel and Underwriters, if any, such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), ) and such other documents or information as the such Selling Holders, Selling Holders Counsel or Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned (it being understood that the Company consents to the use of the Prospectus and any amendment or supplement thereto by each Selling Holder and the Underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Holders;Prospectus or any amendment or supplement thereto).
3.1.4 (d) The Company will take all reasonable actions required to prevent the entry of such stop order or to remove it at the earliest possible moment if entered.
(e) On or prior to any public offering of Registrable Securitiesthe date on which the Registration Statement is declared effective, use its best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “"blue sky” " laws of such jurisdictions in the United States as the any Selling Holder, Selling Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with Counsel or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company Underwriter reasonably requests and do any and all other acts and things that which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition in such jurisdictions of such Registrable Securities owned by such Selling Holder; use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period which the Registration Statement is required to be kept effective; and use its best efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictionsjurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all (f) The Company will notify each Selling Holder, Selling Holders Counsel and any Underwriter and (if requested by any such Registrable Securities Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post- effective amendment has been filed and, with respect to be listed on each securities exchange a Registration Statement or automated quotation system on which similar securities issued by any post-effective amendment, when the Company are then listed;
3.1.6 provide a transfer agent or warrant agentsame has become effective, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, (ii) of the issuance by the Commission of any stop order by the Commission suspending the effectiveness of such a Registration Statement or the initiation or threatening of any proceeding proceedings for such purpose and promptly use its reasonable best efforts to prevent that purpose, (iii) of the issuance by any state securities commission or other regulatory authority of any stop order suspending the qualification or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing exemption from qualification of any of the Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose, and (iv) of the happening of any event which makes any statement made in a Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or related Prospectus or any document that is incorporated or deemed to be incorporated by reference into therein untrue in a material respect or which requires the making of any changes in such Registration Statement, Prospectus or documents so that they 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 in the Registration Statement or Prospectusand Prospectus not misleading in light of the circumstances in which they were made; and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a copy thereof supplement or amendment to each seller such Prospectus so that, as thereafter deliverable to the buyers of such Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) The Company will make generally available an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than 90 days after the end of the 12-month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act.
(h) The Company will enter into customary agreements reasonably satisfactory to the Company (including, if applicable, an underwriting agreement in customary form and which is reasonably satisfactory to the Company) and take such other actions as are reasonably required in order to expedite or its counsel;facilitate the disposition of such Registrable Securities.
3.1.9 notify (i) The Company, during the Holders at any time period when a the Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, will file all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act. The Company may require each Selling Holder to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration including, without limitation, all such information as may be requested by the Commission or the National Association of Securities Dealers, Inc. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth kind described in Section 3.4 3.1(f) hereof;
3.1.10 permit a representative , such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Selling Holder's receipt of the Holders (such representative to be selected by a majority copies of the participating Holders)supplemented or amended Prospectus contemplated by Section 3.1(f) hereof, the Underwritersand, if any, and any attorney or accountant retained so directed by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior such Selling Holder will deliver to the release or disclosure Company all copies, other than permanent file copies then in such Selling Holder's possession, of any the most recent Prospectus covering such information;
3.1.11 obtain a “comfort” letter from Registrable Securities at the Company’s independent registered public accountants in time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of an Underwritten Registration, in customary form days during the period from and covering such matters including the date of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory giving of notice pursuant to a majority-in-interest of the participating Holders;
3.1.12 on Section 3.1(f) hereof to the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing when the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 shall make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning Selling Holders covered by such Registration Statement a Prospectus supplemented or amended to conform with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions requirements of Section 11(a3.1(f) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationhereof.
Appears in 1 contract
Filings; Information. Whenever the Company Parent requests that any Registrable Securities be registered pursuant to Section 3.01 hereof, the Parent shall indicate whether the request is required for a Shelf Registration or an Underwritten Registration. Buyer will thereupon use Reasonable Best Efforts to effect the requested registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously soon as is practicable, and in connection with any such request:
3.1.1 (a) The Buyer will use its Reasonable Best Efforts to prepare and file with the Commission SEC as soon as practicable a Registration Statement with respect to such on any form for which the Buyer then qualifies and which counsel for the Buyer shall deem appropriate and available for the sale of the Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended method of distribution thereof, and use Reasonable Best Efforts to cause such filed Registration Statement to become and remain effective for up to 90 days in the case of an Underwritten Registration and 12 months in the case of a Shelf Registration; provided, that, at least five (5) Business Days prior to filing any registration statement or prospectus or any amendments or supplements thereto, the Buyer will furnish to the Parent and its counsel copies of all such documents proposed to be filed and any such holder shall have the opportunity to comment on any information pertaining to the Parent and its plan of distribution set forth that is contained therein and the Buyer shall make the corrections reasonably requested by the Parent with respect to such information prior to filing any such registration statement or amendment; and provided further that, the Buyer’s obligations to use Reasonable Best Efforts to file or maintain the effectiveness of the Registration Statement shall be suspended for up to 90 days if the Buyer shall furnish to the Parent a certificate signed by the Buyer’s Chief Executive Officer stating that in his reasonable good faith judgment the fulfillment of the foregoing obligations would (i) require the Buyer to make a disclosure that would be detrimental to the Buyer, or (ii) occur at a time when the price or exchange ratio at which the Buyer is obligated to issue securities (other than Buyer employee or officer and director stock options or restricted stock grants) is being determined, except that the foregoing obligations of the Buyer shall be reinstated upon the making of such disclosure by the Buyer or expiration or termination of the circumstances referred to in clause (ii) above (or, if earlier, when such disclosure would no longer be necessary for the fulfillment of the foregoing obligations or no longer be detrimental). Notwithstanding the foregoing, Buyer may suspend a Demand Registration under this Section 3.04 for not more than a cumulative period of 105 days in any 12-month period. If, during the period a Demand Registration is permitted to be suspended under this Section 3.04(a), Buyer does not also suspend the filing or effectiveness, as applicable, of any other Registration Statement covering the resale of securities of the Buyer for the account of any other stockholder of the Buyer, then Buyer shall not suspend the Demand Registration unless, and to the extent that, any such other Registration Statement is suspended.
(b) Notwithstanding anything to the contrary in this Agreement, at the request of the Buyer, the Sellers shall not, directly or indirectly, make sales of any Registrable Securities during the period commencing upon the filing of any Registration Statement by the Buyer to register a Public Offering for its own account and ending 30 days following the closing of such Public Offering (such period not to exceed 150 days), provided, that the Parent is given the opportunity (whether or not accepted by the Parent) to include at least 2,500,000 Shares (as adjusted for any Adjustment Event) in such Public Offering.
(c) The Buyer will, if requested, prior to filing such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the UnderwritersParent and each applicable managing underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Parent and each such Holders’ legal counselunderwriter, if any, such number of copies of such Registration Statement as proposed to be filedStatement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Holders of Registrable Securities included in Parent or each such Registration or the legal counsel for any such Holders underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(d) After the filing of the Registration Statement, the Buyer will promptly notify the Parent of any stop order issued or, to the Buyer’s knowledge, threatened to be issued by the SEC and shall use Reasonable Best Efforts to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior (e) The Buyer will use Reasonable Best Efforts to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions jurisdiction in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsParent reasonably requests; provided, provided that the Company shall Buyer will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.04(e), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(f) The Buyer will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify the Parent, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it shall receive make available to the Parent and to the underwriters any such supplement amendment. The Parent agrees that, upon receipt of any notice from the Buyer of the occurrence of any event of the kind described in the preceding sentence, the Parent will forthwith discontinue the offer and sale of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until receipt by the Parent and the underwriters of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Buyer, the Parent will deliver to the Buyer all copies, other than permanent file copies then in the Parent’s possession, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order by receipt of such notice. In the Commission suspending event the effectiveness of Buyer shall give such notice, the Buyer shall extend the period during which such Registration Statement or shall be maintained effective as provided in Section 3.04(a) hereof by the initiation or threatening number of any proceeding for days during the period from and including the date of the giving of such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior notice to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify date when the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory Buyer shall make available to the Company, prior to Parent such supplemented or amended prospectus.
(g) In the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event case of an Underwritten Registration, the Buyer will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably requested by Parent in order to expedite or facilitate the sale of such Registrable Securities, including but not limited to attendance by the Buyer’s Chief Executive Officer and any other Buyer officers as may be reasonably requested by the Parent, at any investor presentation or any “road shows” undertaken in connection with the marketing or selling of the Registrable Securities provided that the Buyer’s Chief Executive Officer and such Buyer officers (if any) shall not be required to participate in any such presentations or “road show” for more than five Business Days in connection with each Underwritten Registration.
(h) In the case of an Underwritten Registration, the Buyer will use its Reasonable Best Efforts to furnish to each underwriter (i) an opinion or opinions of counsel to the Buyer and (ii) a comfort letter or comfort letters from the Buyer’s independent public accountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the managing Underwriter may underwriter reasonably requests.
(i) As a condition to Buyer’s obligation to register Registrable Securities under this Agreement, Parent shall, promptly upon request, and may be found reasonably satisfactory furnish in writing to a majority-in-interest the Buyer such information regarding the Sellers, the plan of the participating Holders;
3.1.12 on the date distribution of the Registrable Securities are delivered for sale pursuant and such other information as the Buyer may from time to time reasonably request in writing or as may be legally required in connection with such Registrationregistration. In addition, obtain an opinioneach Seller shall complete and execute all questionnaires, dated such datepowers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of counsel representing any underwriting arrangements and the Company for provisions of this Agreement.
(j) In connection with the purposes preparation and filing of such Registration, addressed to each registration statement registering Registrable Securities under the HoldersSecurities Act, the placement agent or sales agentBuyer shall give, upon reasonable notice and during normal business hours, the Parent, its underwriters, if any, and their respective counsel and accountants access to its books and records and an opportunity to discuss the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest business of the participating Holders;
3.1.13 Buyer with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the event opinion of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with Parent’s or such underwriters’ counsel to conduct a reasonable investigation within the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions meaning of Section 11(a11(b)(3) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationAct.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1, the Company shall will use its reasonable best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible but in no event later than the time period prescribed by Section 2.1(a), prepare and file with the Commission as soon as practicable SEC a Registration Statement registration statement on Form S-3 (if use of such form is then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company then qualifies and which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of disposition of such Registrable Securities Securities), and use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Act or otherwise), and the Company will as expeditiously as possible prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the time periods prescribed by Section 2.1(b) and comply with the provisions of the Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission during such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold period in accordance with the intended plan methods of distribution disposition by the Investor set forth in such Registration Statement or supplement to the Prospectus;Statement.
3.1.3 (b) The Company will, prior to filing a Registration Statement or prospectus, prospectus or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge to the Underwriters, if any, Investor and one firm of counsel representing the Holders of Registrable Securities included in such Registration, and such Holders’ legal counselInvestor, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by such parties, and thereafter furnish to the Investor and its counsel for their review and comment such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities.
(c) After the filing of the Registration Statement, the Company will promptly notify the Investor of any stop order issued or threatened by the SEC in connection therewith and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Company will use its reasonable best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be (C) consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (e) The Company will promptly notify the Investor in writing upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities: (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agent, as applicable, and registrar for all such Registrable Securities no later than any other federal or state governmental authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which makes any statement made in the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative Statement or related prospectus or any document incorporated or deemed to be selected incorporated therein by a majority reference untrue in any material respect or which requires the making of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, changes in the preparation of the Registration Statement, related prospectus or documents so that, the Registration Statement and cause the related prospectus 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 in the light of the circumstances in which they were made; (v) the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, 's reasonable determination that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majoritypost-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect effective amendment to the Registration Statement would be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus; and (vi) the declaration of the effectiveness of a Registration Statement (which notice of effectiveness shall be delivered to the Investor in respect writing within one (1) business day of which the Company being advised by the SEC of such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request effectiveness).
(f) The Company will enter into customary agreements and take such other actions as are customarily included reasonably required in order to expedite or facilitate the disposition of such opinions Registrable Securities (the Investor may, at its option, require that any or all of the representations, warranties and negative assurance letters, covenants of the Company also be made to and for the benefit of the Investor). The Investor understands that no sales of Shares may be found reasonably satisfactory underwritten and the Company is under no obligation to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement.
(g) The Company will otherwise comply with all applicable rules and regulations of the SEC, in usual including, without limitation, compliance with applicable reporting requirements under the Exchange Act, and customary form, with the managing Underwriters of such offering;
3.1.14 will make available to its security holders, as soon as reasonably practicable, an earnings earning statement covering the a period of at least twelve (12) months, beginning within three (3) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement Statement, which satisfies earning statement shall satisfy the provisions of Section 11(a1(a) of the Securities Act and Rule 158 thereunder Act.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, h) The Company will use its commercially reasonable efforts to secure designation of all such Registrable Securities covered by such Registration Statement as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the SEC.
(i) The Company will appoint a transfer agent and registrar for all such Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement.
(j) The Company shall make available senior executives for inspection by (i) any Investor, (ii) any underwriter participating in any disposition pursuant to the Registration Statement, (iii) one firm of attorneys and one firm of accountants or other agents retained by the Initial Investor, (iv) one firm of attorneys and one firm of accountants or other agents retained by all other Investor, and (iv) one firm of attorneys retained by all such underwriters (collectively, the "Inspectors") all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably deemed necessary by the Inspector to participate enable each Inspector to exercise its due diligence responsibility, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request for purposes of such due diligence; provided, however, that each Inspector shall hold in customary “road show” presentations confidence and shall not make any disclosure (except to an Investor who has executed a confidentiality agreement as provided for herein) of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement, (b) the release of such Records is ordered pursuant to a subpoena or other order from a court or government body of competent jurisdiction, or (c) the information of such Records has been made generally available to the public other than by disclosure in violation of this or any other agreement. The Company shall not be required to disclose any confidential information in such Records to any Inspector until and unless such Inspector and the Investor shall have entered into confidentiality agreements (in form and substance satisfactory to the Company) with the Company with respect thereto, substantially in the form of this Section 3.1(j). The Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and any Investor) shall be deemed to limit the Investor's ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations. The Company may require the Investor to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be reasonably requested by the Underwriter legally required in any Underwritten Offering; and
3.1.16 otherwiseconnection with such registration including, in good faithwithout limitation, cooperate reasonably with, and take all such customary actions information as may reasonably be requested by the HoldersSEC or the National Association of Securities Dealers, Inc. (the "NASD"). The Investor agrees to provide such information requested in connection with such Registrationregistration within ten (10) business days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of the Registration Statement caused by the Investor' failure to timely provide such information. The Investor agrees that, upon receipt of any written notice from the Company of the happening of any event of the kind described in Section 3.1(e) hereof, the Investor will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until the Investor' receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof, and, if so directed by the Company, the Investor will deliver to the Company all copies, other than permanent file copies then in the Investor' possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when the Company shall make available to the Investor a prospectus supplemented or amended to conform with the requirements of Section 3.1(e) hereof.
Appears in 1 contract
Samples: Private Securities Subscription Agreement (Sonic Solutions/Ca/)
Filings; Information. Whenever the Company is required to effect the registration holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 2this Agreement, the Company shall will use its best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as practicable prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof (it being understood that the Company shall use Form S-3 (or any replacement form) if such form is then available), and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and thereafter to remain effective until all Registrable Securities covered by such Registration Statement have been sold;for a period of not less than 270 days.
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement(b) The Company will, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder, counsel representing any Selling Holders, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the foregoing within 5 business days after delivery, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior (c) After the filing of the registration statement, the Company will promptly notify each Selling Holder covered by such registration statement of any stop order issued or threatened by the SEC and take all reasonable actions required to any public offering prevent the entry of Registrable Securities, such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States and such other jurisdictions as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally -------- to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (e) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a Misstatementmaterial fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and then will promptly make available to correct each Selling Holder any such Misstatement supplement or amendment.
(f) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as set forth are reasonably required in Section 3.4 hereof;
3.1.10 permit a representative order to expedite or facilitate the disposition of such Registrable Securities in accordance with the intended plan of distribution of the Selling Holders. The Selling Holders (such representative to be selected by a majority may, at their option, require that any or all of the participating representations, warranties and covenants of the Company or to or for the benefit of such Underwriters also be made to and for the benefit of such Selling Holders), the Underwriters.
(g) The Company will deliver promptly to each Selling Holder of such Registrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe "Inspectors"), in the preparation all ---------- financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the "Records"), subject to restrictions imposed by any ------- governmental authority governing access to classified information, as shall be reasonably necessary to enable them to perform a reasonable and customary due diligence investigation, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and provided, -------- further, that if failing the entry of a protective order or the ------- waiver by the Company permitting the disclosure or release of such representatives or Underwriters enter into Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a confidentiality agreementcourt of competent jurisdiction, in form give notice to the Company and substance reasonably satisfactory to allow the Company, prior at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to each Selling Holder and to each Underwriter, if any, a signed counterpart, addressed to such Selling Holder or Underwriter, of (i) an opinion or opinions of counsel to the release Company and (ii) a comfort letter or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the managing Underwriter case may reasonably requestbe, and may be found reasonably satisfactory to a majority-in-interest as the Selling Holders of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to included in such Registration, obtain an opinion, dated such date, of counsel representing offering or the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agentmanaging Underwriter, if any, therefor reasonably requests.
(i) The Company will use its best efforts to comply with all applicable rules and regulations of the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance lettersSEC, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(or any successor rule promulgated thereafter j) The Company will use its best efforts (a) to cause all such Registrable Securities to be listed on a national securities exchange (if such shares are not already so listed) and on each additional national securities exchange on which similar securities issued by the CommissionCompany are then listed (if any);
3.1.15 , if the Registration involves the Registration listing of such Registrable Securities involving gross proceeds in excess is then permitted under the rules of $25,000,000, use its reasonable efforts such exchange or (b) to make available senior executives secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the SEC or, failing that, to secure NASDAQ authorization for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the National Association of Securities Dealers, Inc.
(k) In connection with an underwritten offering, the Company will participate, at its own expense, to participate in customary “road show” presentations that may be the extent reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwisemanaging underwriter for the offering or the Selling Holder, in good faithefforts to sell the Registrable Securities under the offering (including, cooperate without limitation, participating in "roadshow" meetings with prospective investors) that would be customary for primary offerings of equity securities by the Company.
(l) The Company will appoint a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement. The Company may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably with, request and take such customary actions other information as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4.4(e) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof, and, if so directed by the Company, such Selling Holder will deliver to the Company, at the Company's expense, all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 4.4(e) hereof to the date when the Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 3.1(e) hereof.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1 or Section 2.2, the Company shall will use its best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company promptly will prepare and file with the Commission as soon as practicable a Registration Statement with respect to the offer and sale of such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the completion of the distribution contemplated thereby; provided, however, the Company shall not be required to keep such Registration Statement effective for more than 180 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold;, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable).
3.1.2 (b) The Company promptly will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Statement as may be requested by the Holders or any Underwriter of Registrable Securities or necessary to keep such Registration Statement effective for as may be long as such registration is required by the rules, regulations or instructions applicable to remain effective pursuant to the registration form used terms hereof; cause the prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Company or by Securities Act; and comply with the provisions of the Securities Act or rules and regulations thereunder applicable to keep it with respect to the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold during the applicable period in accordance with the intended plan methods of distribution disposition by Sellers set forth in such Registration Statement or supplement to the Prospectus;prospectus.
3.1.3 (c) The Company, at least ten (10) days prior to filing a Registration Statement or prospectus, at least five (5) days prior to filing a prospectus or any amendment or supplement theretoto such Registration Statement or prospectus, will furnish without charge to the Underwriters(i) Sellers, (ii) counsel representing Sellers, (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, Registration Statement copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all together with exhibits thereto and thereto, which documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would will be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on review and approval by each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.foregoing within
Appears in 1 contract
Samples: Registration Rights Agreement (Frontline Communications Corp)
Filings; Information. Whenever Subject to the Company is required limitations set forth in Article V, whenever any Shareholder (the “Registering Shareholder”) requests that any Registrable Securities be registered pursuant to Section 5.1, Section 5.2 or Section 5.4, the Corporation will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is practicable, and in connection with any such request:
3.1.1 (a) The Corporation will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Corporation then qualifies and that counsel for the Corporation deems appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with for a period of not less than 180 days (or any longer period of time required under this Agreement); provided, however, that if the Commission such amendments and post-effective amendments Corporation furnishes to the Registration StatementRegistering Shareholder a certificate signed by the Corporation’s Chief Executive Officer, and such supplements President or any Vice President stating that in his good faith judgment it would be detrimental or otherwise disadvantageous to the ProspectusCorporation or its Shareholders for such a registration statement to be filed as expeditiously as possible, as may the Corporation will be requested by entitled to postpone the Holders or any Underwriter filing of Registrable Securities or as may be required by such registration statement for a reasonable period of time following the rules, regulations or instructions applicable to date on which the Corporation receives the Registering Shareholder’s request for registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with Section 5.1 or Section 5.4, but the intended plan aggregate of distribution set forth in such Registration Statement or supplement to periods of time shall not exceed 90 days during any 12-month period unless the Prospectus;Corporation invokes its rights under Section 5.1(d).
3.1.3 (b) The Corporation will, if requested by a Registering Shareholder, at least five Business Days prior to filing a Registration Statement such registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the UnderwritersRegistering Shareholder, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed documents, which documents will be subject to the review of the Registering Shareholder and the applicable Underwriters, and the Corporation will not file any registration statement or any amendment thereto, or any prospectus or any supplement thereto (excluding any documents which, upon filing, would be incorporated or deemed to be filedincorporated by reference therein) to which the Registering Shareholder or the managing Underwriter, if any, may reasonably object on a timely basis; and thereafter the Corporation will furnish to the Registering Shareholder and each such Underwriter, if any, such number of copies of such registration statement and any amendment and any supplement to such Registration Statement registration statement (in each case including all exhibits thereto to such registration statement and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents any amendment or supplement thereto as the Underwriters and the Holders of Registrable Securities included in Registering Shareholder or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities. Notwithstanding the foregoing, no Registering Shareholder shall be under any obligation to review or comment upon any registration statement or prospectus or any amendments or supplements thereto, except to the extent related to Shareholder-Supplied Information supplied by such Holders;
3.1.4 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws on behalf of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Registering Shareholder.
(in light of their intended plan of distributionc) may request, and (ii) The Corporation shall promptly take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary so that (i) each registration statement and any amendment thereto and the prospectus forming a part thereof and any amendment or supplement thereto (and each report or other document incorporated therein by virtue reference in each case) complies in all material respects with the Securities Act and the Exchange Act and the respective rules and regulations thereunder, as in effect at any relevant time, (ii) each registration statements and any amendment thereto does not, when it becomes effective, contain an untrue statement of the business and operations of the Company and do any and all other acts and things that may be necessary a material fact or advisable omit to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be state a material fact required to qualify generally be stated therein or necessary to do business in any jurisdiction where it would make the statements therein not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicablemisleading, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise (iii) each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance prospectus forming a part of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose registration statement, and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expenseprospectus, in the preparation form delivered to purchasers of the Registration StatementRegistrable Securities does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, and cause in the Company’s officerslight of the circumstances under which they were made, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registrationnot misleading; provided, however, that such representatives nothing in this Agreement will impose liability or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory responsibility upon the Corporation to the Companyextent related to Shareholder-Supplied Information used in a registration statement, prior prospectus or any amendment or supplement thereto substantially in the form provided or approved by the Shareholder supplying the Shareholder Supplied Information. After the filing of the registration statement, the Corporation will promptly notify the Registering Shareholder of any stop order issued or, to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from Corporation’s knowledge, threatened to be issued by the Company’s independent registered public accountants in Commission and take all reasonable actions required to prevent the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes entry of such Registration, addressed stop order or to the Holders, the placement agent or sales agent, remove it if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationentered.
Appears in 1 contract
Samples: Shareholder Agreement
Filings; Information. Whenever the Company is required to effect or cause the registration of any the offer and sale of Registrable Securities pursuant to Section 22.1 or 2.2 hereof, the Company shall will use its best efforts to effect the Registration to permit registration of the offer and the sale of such Registrable Securities in accordance with the intended plan method(s) of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company promptly will prepare and file with the Commission as soon as practicable a Registration Statement with respect to the offer and sale of such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the completion of the distribution contemplated thereby; provided, however, the Company shall not be required to keep such Registration Statement effective for more than 270 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold;, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable); provided, further, that with respect to a Demand Registration, the Company shall file with the Commission a Registration Statement as soon as is practicable after the date of the Request and in any event no later than 60 days after the date of the Request for the Demand Registration (the "Target Filing Date") and shall cause such Registration Statement to be declared effective as soon as is practicable after the date of filing and in any event no later than 120 days after the date of such Request (the "Target Effective Date"); provided, further however, that with respect to a Request for Demand Registration made prior to the first anniversary of the date hereof, other than with respect to a Request for Demand Registration made subsequent to a Preferred Stock Event of Default, the Company shall not be obligated to cause such Registration Statement to be declared effective prior to the first anniversary of the date hereof.
3.1.2 (b) The Company promptly will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Statement as may be requested by the Holders or any Underwriter of Registrable Securities or necessary to keep such Registration Statement effective for as may be long as such registration is required by the rules, regulations or instructions applicable to remain effective pursuant to the registration form used terms hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Company or by Securities Act; and comply with the provisions of the Securities Act or rules and regulations thereunder applicable to keep it with respect to the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold during the applicable period in accordance with the intended plan methods of distribution disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectus;.
3.1.3 (c) The Company, at least ten (10) Business Days prior to filing a Registration Statement or prospectus, at least five (5) Business Days prior to filing a Prospectus or any amendment or supplement theretoto such Registration Statement or Prospectus, will furnish without charge to the Underwriters(i) each Selling Holder, (ii) not more than one counsel representing all Selling Holders ("Selling Holders Counsel"), to be selected by a majority-in-interest of such Selling Holders, and (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, Registration Statement copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by each of the foregoing within five (5) Business Days after delivery (except that such review and approval of any Prospectus or any amendment and or supplement to such Registration Statement or Prospectus must be within three (3) Business Days after delivery), and thereafter, furnish to such Selling Holders, Selling Holders Counsel and Underwriters, if any, such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), ) and such other documents or information as the such Selling Holders, Selling Holders Counsel or Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned (it being understood that the Company consents to the use of the Prospectus and any amendment or supplement thereto by each Selling Holder and the Underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Holders;Prospectus or any amendment or supplement thereto).
3.1.4 (d) The Company promptly will notify each Selling Holder of (and in any event within 24 hours of the receipt of) any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it at the earliest possible moment if entered.
(e) On or prior to any public offering of Registrable Securitiesthe date on which the Registration Statement is declared effective, use its best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “"blue sky” " laws of such jurisdictions in the United States as the any Selling Holder, Selling Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with Counsel or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company Underwriter requests and do any and all other acts and things that which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition in such jurisdictions of such Registrable Securities owned by such Selling Holder; use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period which the Registration Statement is required to be kept effective; and use its best efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictionsjurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all (f) The Company will notify each Selling Holder, Selling Holders Counsel and any Underwriter promptly (and in any event within 24 hours) and (if requested by any such Registrable Securities Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any post- effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information to be listed on each securities exchange included in any Registration Statement or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent Prospectus or warrant agentotherwise, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, (iii) of the issuance by the Commission of any stop order by the Commission suspending the effectiveness of such a Registration Statement or the initiation or threatening of any proceeding proceedings for such purpose and promptly use its reasonable best efforts to prevent that purpose, (iv) of the issuance by any state securities commission or other regulatory authority of any stop order suspending the qualification or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing exemption from qualification of any of the Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose, and (v) of the happening of any event which makes any statement made in a Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or related Prospectus or any document that is incorporated or deemed to be incorporated by reference into therein untrue or which requires the making of any changes in such Registration Statement, Prospectus or documents so that they 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 in the Registration Statement or Prospectusand Prospectus not misleading in light of the circumstances in which they were made; and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a copy thereof supplement or amendment to each seller such Prospectus so that, as thereafter deliverable to the buyers of such Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) The Company will make generally available an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than 90 days after the end of the 12- month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and otherwise complies with Rule 158 under the Securities Act.
(h) If requested by the managing Underwriter or Underwriters, Selling Holders Counsel, or any Selling Holder, the Company will, unless otherwise advised by counsel, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing Underwriter or Underwriters requests, or Selling Holders Counsel requests, to be included therein, including, without limitation, with respect to the Registrable Securities being sold by such Selling Holder to such Underwriter or Underwriters, the purchase price being paid therefor by such Underwriter or Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such Prospectus supplement or post-effective amendment.
(i) The Company will enter into customary agreements reasonably satisfactory to the Company (including, if applicable, an underwriting agreement in customary form and which is reasonably satisfactory to the Company) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (the Selling Holders, at their option, may require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such Underwriters also be made to and for the benefit of such Selling Holders).
(j) The Company will make available to each Selling Holder (and will deliver to their counsel) and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel;
3.1.9 notify counsel or auditors and will also make available for inspection at reasonable times at the Holders at Company's offices by any time when a Prospectus relating Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement.
(k) In connection with an underwritten offering, the Company will participate, to the extent reasonably requested by the managing Underwriter or Underwriters for the offering or the Selling Holders, in reasonable and customary efforts to sell the securities under the offering, including, without limitation, participating in "road shows."
(l) The Company, during the period when the Prospectus is required to be delivered under the Securities Act, promptly will file all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(m) The Company, if requested by Selling Holders, shall cause its outside legal counsel to deliver an opinion relating to the Registrable Securities, in customary form to such Selling Holders and any Underwriter therefor, cause its officers to execute and deliver all customary documents and certificates requested by any Underwriters of the Registrable Securities, and cause its independent public accountants to provide to such Selling Holders and any Underwriters therefor one or more comfort letters in customary form. The Company may require each Selling Holder to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration including, without limitation, all such information as may be requested by the Commission or the National Association of Securities Dealers, Inc. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth kind described in Section 3.4 3.1(f) hereof;
3.1.10 permit a representative , such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Selling Holder's receipt of the Holders (such representative to be selected by a majority copies of the participating Holders)supplemented or amended Prospectus contemplated by Section 3.1(f) hereof, the Underwritersand, if any, and any attorney or accountant retained so directed by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior such Selling Holder will deliver to the release or disclosure Company all copies, other than permanent file copies then in such Selling Holder's possession, of any the most recent prospectus covering such information;
3.1.11 obtain a “comfort” letter from Registrable Securities at the Company’s independent registered public accountants in time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of an Underwritten Registration, in customary form days during the period from and covering such matters including the date of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory giving of notice pursuant to a majority-in-interest of the participating Holders;
3.1.12 on Section 3.1(f) hereof to the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing when the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 shall make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning Selling Holders covered by such Registration Statement a Prospectus supplemented or amended to conform with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions requirements of Section 11(a3.1(f) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationhereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Headway Corporate Resources Inc)
Filings; Information. Whenever the Company is required Requesting Holders request that any Registrable Securities be registered pursuant to Section 2(a), Horizon will use its reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is practicable, and in connection with any such request:
3.1.1 (i) Horizon will as expeditiously as possible prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which Horizon then qualifies and which counsel for Horizon shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until for a period of not less than 90 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement registration statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments ); provided that if Horizon shall furnish to the Registration StatementRequesting Holders a certificate signed by Horizon's Chairman of the Board stating that in his good faith judgment it would be detrimental or otherwise disadvantageous to Horizon or its stockholders for such a registration statement to be filed as expeditiously as possible, and Horizon shall have a period of not more than 120 days within which to file such supplements to registration statement measured from the Prospectus, as may be requested by date of Horizon's receipt of the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the Requesting Holders' request for registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Section 2(a).
3.1.3 (ii) Horizon will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersRequesting Holders and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Requesting Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Requesting Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(iii) After the filing of the registration statement, Horizon will promptly notify the Requesting Holders of any stop order issued or, to Horizon's knowledge, threatened to be issued by the SEC and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior (iv) Horizon will endeavor to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Requesting Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things ; provided that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall Horizon will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph 2(d)(iv), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(v) Horizon will as promptly as is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 practicable notify the Requesting Holders at any time when a Prospectus prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such Registration Statement is prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be delivered stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and promptly make available to the Requesting Holders and to the Underwriters any such supplement or amendment. The Requesting Holders agree that, upon receipt of any notice from Horizon of the occurrence of any event of the kind described in the preceding sentence, the Requesting Holders will forthwith discontinue the offer and sale of Registrable Securities Actpursuant to the registration statement covering such Registrable Securities until receipt by the Requesting Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by Horizon, the Requesting Holders will deliver to Horizon all copies, other than permanent file copies then in the Requesting Holders' possession, of the happening most recent prospectus covering such Registrable Securities at the time of any receipt of such notice. In the event Horizon shall give such notice, Horizon shall extend the period during which such registration statement shall be maintained effective as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth provided in Section 3.4 hereof;
3.1.10 permit a representative 2(d)(i) by the number of days during the period from and including the date of the giving of such notice to the date when Horizon shall make available to the Requesting Holders such supplemented or amended prospectus.
(vi) Horizon will enter into customary agreements (including an underwriting agreement in customary form) and take such representative other actions as are reasonably required in order to be selected by expedite or facilitate the sale of such Registrable Securities.
(vii) Horizon will furnish to the Requesting Holders and to each Underwriter a majority of signed counterpart, addressed to the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Requesting Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registrationopinion or opinions of counsel to Horizon and a comfort letter or comfort letters from Horizon's independent public accountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the Requesting Holders or the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;requests.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 (viii) Horizon will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the SEC thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, ix) Horizon will use its reasonable efforts to make available senior executives cause all such Registrable Securities to be listed on each securities exchange or over- the-counter market on which the Common Stock is then listed. Horizon may require the Requesting Holders promptly to furnish in writing to Horizon such information regarding the Requesting Holders, the plan of distribution of the Company Registrable Securities and other information as Horizon may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (Horizon Offshore Inc)
Filings; Information. Whenever the Holders have requested that any Registrable Securities be registered pursuant to this agreement, the Company is required will use its reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as practicable prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof (it being understood that the Company shall use Form S-3 (or any replacement form) if such form is then available), and use its commercially reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;effective.
3.1.2 (b) The Company will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by necessary to keep such registration statement effective and to comply with the Holders or any Underwriter provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold registration statement until such time as all of such securities have been disposed of in accordance with the intended plan methods of distribution disposition by the Selling Holder or Selling Holders thereof set forth in such Registration Statement or supplement to the Prospectus;registration statement.
3.1.3 (c) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder, counsel representing any Selling Holders, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the foregoing within 5 Business Days after delivery, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior (d) After the filing of the registration statement, the Company will promptly notify each Selling Holder covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to any public offering prevent the entry of Registrable Securities, such stop order or to remove it if entered.
(e) The Company will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States and such other jurisdictions as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder’s intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (f) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a Misstatementmaterial fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and then will promptly make available to correct each Selling Holder any such Misstatement supplement or amendment.
(g) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as set forth are reasonably required in Section 3.4 hereof;
3.1.10 permit a representative order to expedite or facilitate the disposition of such Registrable Securities in accordance with the intended plan of distribution of the Holders Selling Holders.
(h) The Company will deliver promptly to each Selling Holder of such representative to be selected by a majority of the participating Holders), the UnderwritersRegistrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company and its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe “Inspectors”), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the “Records”), as shall be reasonably necessary to enable them to perform a reasonable and customary due diligence investigation, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementCompany determines, in form good faith, to be confidential and substance reasonably satisfactory which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the Companydisclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided that prior to any disclosure or release pursuant to clause (ii), the release or disclosure Inspectors shall provide the Company with prompt notice of any such information;request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors’ obligation not to disclose such Records; and provided, further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
3.1.11 obtain (i) The Company will furnish to each Underwriter, if any, (i) an opinion or opinions of counsel to the Company and (ii) a “comfort” comfort letter or comfort letters from the Company’s independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agentUnderwriter, if any, therefor reasonably requests.
(j) The Company will use its commercially reasonable efforts to comply with all applicable rules and regulations of the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance lettersCommission, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(or any successor rule promulgated thereafter k) The Company will use its commercially reasonable efforts (a) to cause all such Registrable Securities to be listed on a national securities exchange (if such shares are not already so listed) and on each additional national securities exchange on which similar securities issued by the CommissionCompany are then listed (if any);
3.1.15 , if the Registration involves listing of such Registrable Securities is then permitted under the Registration rules of such exchange or (b) to secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ “national market system security” within the meaning of Rule 11Aa2-1 of the Commission or, failing that, to secure NASDAQ authorization for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD.
(l) The Company will appoint a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement. The Company may require each Selling Holder of Registrable Securities involving gross proceeds to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives the Company such information regarding the distribution of the Registrable Securities as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(f) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the Company such Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Selling Holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 3.1(b) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(f) hereof to the date when the Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 3.1(f) hereof.
Appears in 1 contract
Samples: Management Stockholders Agreement (Cpi International, Inc.)
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in In connection with any such requestregistration pursuant to this Section 4.11 in which Stockholders are registering Registrable Securities, Envision shall:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect (i) furnish to participating Stockholders such number of copies of each registration statement filed pursuant to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filedregistration, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each any preliminary Prospectus), and prospectus) as such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders Stockholders may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by them that are included in such Holdersregistration, which sale shall be in accordance with the terms of this Agreement and the Stockholders' Letters;
3.1.4 prior (ii) after the filing of a registration statement, (A) promptly notify participating Stockholders of any stop order issued or threatened to any public offering be issued by the Securities and Exchange Commission and (B) take all reasonable actions required to prevent the entry of Registrable Securities, such stop order or remove it if entered;
(iii) use its best reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement included in such registration for offer and sale under such other securities or “"blue sky” " laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered shall be reasonably requested by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsparticipating Stockholders; providedPROVIDED, HOWEVER, that the Company Envision shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 4.11(g), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subjectjurisdiction;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent(iv) promptly notify participating Stockholders, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement the sale of Registrable Securities is required to be delivered under the Securities Act, of the happening occurrence of any event as a result of which such prospectus includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the Prospectus included statements therein not misleading in such Registration Statementlight of the circumstances then existing, and, as then in effectpromptly as reasonably practicable following such occurrence, includes a Misstatement, prepare and then file any amendment or supplement to correct such Misstatement the applicable registration statement as set forth in Section 3.4 hereofmay be necessary to comply with the provisions of the Securities Act;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwritersv) enter into customary agreements (including, if anysuch registration involves an underwriting, an underwriting agreement in customary form) and any attorney take such other actions as are reasonably required in order to expedite or accountant retained by facilitate the sale of such Holders or Underwriter to participateRegistrable Securities, at each such person’s own expense, which sale shall be in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection accordance with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form terms of this Agreement and substance reasonably satisfactory the Stockholders' Letters;
(vi) furnish to the CompanyPrincipal Stockholder a signed counterpart, prior addressed to the release Principal Stockholder, of (A) an opinion or disclosure opinions of any such information;
3.1.11 obtain counsel to Envision and (B) a “comfort” comfort letter or letters from the Company’s Envision's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the managing Underwriter case may be, as the Principal Stockholder may reasonably request; and
(vii) make available for inspection by the Principal Stockholder and any attorney, accountant or other agent retained by the Principal Stockholder, all financial and other records and other information, pertinent corporate documents and properties of Envision, its Subsidiaries and Affiliates, as is reasonably necessary to enable the Principal Stockholder and such agents to exercise their due diligence responsibilities, PROVIDED, HOWEVER, that Envision may be found require the Principal Stockholder or any such agent to sign a confidentiality agreement reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant Envision prior to any such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationinspection.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect In connection with the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, Sections 2.1 and in connection with any such request2.2:
3.1.1 (a) The Company will prepare and file with the Commission as soon as practicable a Shelf Registration Statement with respect on Form S-3 or such other form that the Company is eligible to such use and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan methods of distribution set forth thereof, as may be reasonably necessary to effect the sale of the Registrable Securities, including in such an Underwritten Offering. Before filing a Shelf Registration Statement, prospectus or any free writing prospectus, or any amendments or supplements thereto, the Company shall (x) furnish to the managing Underwriter(s), if any, and the Holders participating in the Shelf Registration Statement or supplement an Underwritten Offering, as applicable, copies of all documents prepared to be filed, and provide such managing Underwriter(s), if any, and such Holders and their respective counsel with a reasonable opportunity to review and comment on such documents prior to their filing and (y) not file any Shelf Registration Statement or prospectus to which any such Underwriters or Holders, as applicable, shall reasonably object. The Company may require Holders to furnish in writing to the Prospectus;Company such information regarding such Holders and other information as the Company may be legally required to disclose in connection with such registration.
3.1.3 (b) The Company shall, if requested, prior to filing a Shelf Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Shelf Registration Statement as proposed to be filedStatement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), unless such exhibits and documents are available on the Prospectus Commission’s Electronic Data Gathering and Retrieval System) and the prospectus included in such Shelf Registration Statement (including each prospectus, preliminary Prospectus)prospectus and prospectus supplement, and such other documents as applicable) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders managing Underwriter, if any, may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holders;.
3.1.4 prior (c) After the filing of the Shelf Registration Statement, the Company will promptly notify the Selling Holders and the managing Underwriter(s), if any, of any stop order issued or, to any public offering of Registrable Securitiesthe Company’s knowledge, threatened to be issued by the Commission and use its best commercially reasonable efforts to prevent the entry of such stop order or to remove it if entered.
(id) register or In addition to the requirements imposed on the Company elsewhere herein, the Company will qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” laws of such jurisdictions in the United States as any Selling Holder or managing Underwriter(s), if any, or their respective counsel reasonably request in writing for the Holders registration or qualification of the Registrable Securities included for sale; keep any such registration or qualification (or exemption therefrom) effective during the period in which such Shelf Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; provided, however, that the Company shall will not be required to (i) qualify to generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.1(d), (ii) subject itself to taxation in any such jurisdiction, or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;.
3.1.5 cause all such (e) The Company will as promptly as is reasonably practicable notify the Selling Holders and the managing Underwriter(s), if any, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it make available to the Selling Holders and to the managing Underwriter(s), if any, any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, the Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the Shelf Registration Statement covering such Registrable Securities until receipt by the Selling Holders and the managing Underwriter(s) of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders shall receive notice or obtain knowledge thereofdeliver to the Company all copies, other than permanent file copies then in the possession of the Selling Holders, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order by the Commission suspending the effectiveness receipt of such notice. Furthermore, in the event the Company shall give such notice, the Company shall, as promptly as is reasonably practicable, subject to the suspension rights under Sections 2.1(c), (d) and (e), if applicable, prepare a supplement or post-effective amendment to the Shelf Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior a supplement to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus related prospectus or any document that is incorporated or deemed to be incorporated therein by reference into such Registration Statement or Prospectusreference, furnish a copy thereof and file any other required document so that, as thereafter delivered to each seller the purchasers of such the Registrable Securities being sold thereunder, such prospectus will not contain an untrue statement of a material fact or its counsel;
3.1.9 notify the Holders at any time when omit to state a Prospectus relating to such Registration Statement is material fact required to be delivered under stated therein or necessary to make the Securities Actstatements therein, in light of the happening circumstances under which they were made, not misleading.
(f) [Reserved]
(g) [Reserved]
(h) If requested by the managing Underwriter(s) or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing Underwriter(s) or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of any event as a result the Underwritten Offering of which the Prospectus included Registrable Securities to be sold in such Registration Statement, as then in effect, includes a Misstatementoffering, and then promptly make all required filings of such prospectus supplement or post-effective amendment.
(i) The Company shall promptly make available for inspection by Initial Holder Representative, any other representative designated to correct such Misstatement act as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such other than the Initial Holders) (the “Additional Representative”), or any representative to be selected by a majority of the Underwriter(s) participating in any disposition of Registrable Securities pursuant to a Shelf Registration Statement, Holders’ Counsel and Underwriters’ Counsel, and any accountant or other agent or representative retained by or on behalf of the Initial Holders (as representative of any such Initial Holder), the UnderwritersAdditional Representative, if anyor the representative of such Underwriter(s) (collectively, the “Inspectors”), all financial and any attorney or accountant retained by such Holders or Underwriter to participateother records, at each such person’s own expense, in the preparation pertinent corporate documents and properties of the Registration StatementCompany (collectively, the “Records”), as shall reasonably be necessary to enable them to exercise their due diligence responsibility (including the conduct of a reasonable investigation within the meaning of Section 11 of the Securities Act), and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspector in connection with the Registrationsuch registration statement; provided, however, that unless the disclosure of such representatives Records is necessary to avoid or Underwriters enter into correct a confidentiality agreementmisstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, in form and substance reasonably satisfactory the Company shall not be required to provide any information under this subparagraph (i) if (A) the Company believes, after consultation with counsel for the Company, prior that to do so would cause the release Company to forfeit an attorney-client privilege that was applicable to such information or disclosure of any such information;
3.1.11 obtain a “comfort” letter (B) if the Company has requested and been granted from the Company’s independent registered public accountants Commission confidential treatment of such information contained in any filing with the event of an Underwritten RegistrationCommission or documents provided supplementally or otherwise.
(j) The Company shall cause the Common Stock included in any Shelf Registration Statement to be listed on each securities exchange, in customary form and covering such matters of including, without limitation, the type customarily covered Principal Market, on which securities issued by “comfort” letters as the managing Underwriter may reasonably requestCompany are then listed, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date if the Registrable Securities are delivered for sale pursuant to such Registrationso qualify.
(k) The Company shall cooperate with each Selling Holder, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agenteach Underwriter, if any, and participating in the Underwriters, if any, covering disposition of such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance lettersRegistrable Securities, and may their respective counsel in connection with any filings required to be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, made with the managing Underwriters of such offering;Financial Industry Regulatory Authority (“FINRA”).
3.1.14 make available to its security holders(l) The Company shall, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested in an Underwritten Offering Notice, participate in any customary roadshow organized for purposes of publicizing the sale or other disposition of the Registrable Securities. Such participation shall include, but not be limited to, dispatch by the Underwriter Company of personnel, on a reasonable basis and subject to the operational needs of the Company, to assist in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably witheach presentation during made such roadshow, and take such customary actions as may reasonably provision of the Company data needed for purposes of the roadshow.
(m) The Company shall, during the period when the prospectus is required to be requested by delivered under the HoldersSecurities Act, in connection use commercially reasonable efforts to promptly file all documents required to be filed with such Registrationthe Commission pursuant to Section 13(a) of the Exchange Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Jernigan Capital, Inc.)
Filings; Information. Whenever the Company is required -------------------- to effect or cause the registration of any Registrable Securities pursuant to Section 22.1, the Company shall will use its best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until all Registrable Securities covered by for a period of not less than 120 days, or six months with respect to a "shelf" registration (or such shorter period as is required to complete the distribution of the shares); provided that the Company -------- may postpone the filing of a Registration Statement for a period of not more than 90 days from the date of receipt of the request in accordance with Section 2.1 if the Company reasonably determines that such a filing would adversely affect any proposed financing or acquisition by the Company and furnishes to the Demanding Holder a certificate signed by an executive officer of the Company to such effect; provided that the Company shall only be entitled to postpone any such filing one time in any twelve-month period. If the Company postpones the filing of a Registration Statement, it shall promptly notify the Demanding Holder in writing when the events or circumstances permitting such postponement have been sold;ended.
3.1.2 (b) The Company will as expeditiously as possible prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such Registration Statement and the Prospectus, Prospectus used in connection therewith as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable necessary to keep such Registration Statement continuously effective (subject to the registration form used second to last paragraph of this Section 3.1) for a period of not less than 120 days, or six months with respect to a "shelf" registration, or such shorter period which will terminate when all securities covered by such Registration Statement have been sold (but not before the Company or by expiration of the 90-day period referred to in Section 4(3) of the Securities Act or rules and regulations thereunder Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to keep the disposition of all securities covered by such Registration Statement effective until all during such period in accordance with the intended methods of disposition by each Selling Holder thereof set forth in such Registration Statement.
(c) The Company will, prior to filing a Registration Statement or Prospectus or any amendment or supplement thereto (including documents that would be incorporated or deemed to be incorporated therein by reference), furnish to each Selling Holder, counsel representing such Selling Holder, and each Underwriter, if any, of the Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and comment by the foregoing within five days after delivery, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, for their review and comment such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder, counsel or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior (d) After the filing of the Registration Statement, the Company will promptly notify each Selling Holder, (i) when a Prospectus or any supplement thereto or post-effective amendment has been filed and, with respect to a Registration Statement or any public offering post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if at any time when a Prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities, the representations and warranties of the Company contained in any agreement contemplated by Section 3.1(h) (including any underwriting agreement) cease to be true and correct in all material respects, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (vi) of the happening of any event which makes any statement made in such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in a Registration Statement, Prospectus or documents incorporated therein by reference so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be necessary.
(e) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included in such Registration Statement reasonably (in light of their the Selling Holder's intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Selling Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holders; provided, provided that the Company shall will not be required to (A) qualify generally -------- to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause (f) The Company will take all such Registrable Securities reasonable actions required to be listed on each securities exchange or automated quotation system on which similar securities issued by prevent the Company are then listed;
3.1.6 provide a transfer agent or warrant agententry, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereofthe withdrawal, of the issuance of any stop order by the Commission suspending the effectiveness of such a Registration Statement Statement, or the initiation or threatening lifting of any proceeding for such purpose and promptly use its reasonable best efforts to prevent suspension of the issuance qualification (or exemption from qualification) of any stop order or to obtain its withdrawal if such stop order should be issued;Registrable Securities for sale in any jurisdiction, at the earliest moment.
3.1.8 at least five (5g) days prior to Upon the filing occurrence of any Registration Statement event contemplated by paragraph 3.1(d)(vi) or Prospectus 3.1(d)(vii) above, the Company will (i) prepare a supplement or any post-effective amendment or supplement to such Registration Statement or a supplement to the related Prospectus or any document that is incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be incorporated by reference into such Registration Statement stated therein or Prospectusnecessary to make the statements therein, furnish a copy thereof in light of the circumstances under which they were made, not misleading, and (ii) promptly make available to each seller Selling Holder any such supplement or amendment.
(h) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form and which is reasonably satisfactory to the Company) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (the Selling Holders may, at their option, require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such Underwriters also be made to and for the benefit of such Selling Holders).
(i) The Company will make available to each Selling Holder (and will deliver to his counsel) and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel;
3.1.9 notify the Holders at counsel or auditors and will also make available for inspection by any time when a Prospectus relating Selling Holder, any Underwriter participating in any disposition pursuant to such Registration Statement is required to be delivered under the Securities Actand any attorney, accountant or other professional retained by any such Selling Holder or Underwriter, all financial and other records, pertinent corporate documents and properties of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders Company (such representative to be selected by a majority of the participating Holders)collectively, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter "Records") as shall be reasonably necessary to participate, at each such person’s own expense, in the preparation of the Registration Statementenable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant inspectors in connection with such Registration Statement. Each Selling Holder agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Registration; providedInvestor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or fiduciary obligation to the Company) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such information is made generally available to the public. Each Selling Holder further agrees that it will, upon learning that disclosure of such representatives Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, to the extent permitted by such court, at the Company's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(j) The Company will furnish to each Selling Holder and to each Underwriter, (i) an opinion or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory opinions of counsel to the Company, prior to the release and (ii) a comfort letter or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the Selling Holders or the managing Underwriter may therefor reasonably requestrequests.
(k) In connection with an underwritten offering, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registrationwill participate, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be extent reasonably requested by the managing Underwriter in any Underwritten Offering; and
3.1.16 otherwisefor the offering or the Selling Holders, in good faithcustomary efforts to sell the securities under the offering, cooperate including, without limitation, participating in "road shows." The Company may require each Selling Holder to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities by the Selling Holder as the Company may from time to time reasonably with, request and take such customary actions other information as may reasonably be legally required in connection with such registration including, without limitation, all such information as may be requested by the HoldersCommission or the NASD. The Company may exclude from such registration any Holder who fails, after twenty (20) days' written notice of this requirement, to provide such information. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Sections 3.1(d)(iii), (v), (vi) and (vii) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3.1(g) hereof, and, if so directed by the Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies, then in such Selling Holder's possession of the most recent Prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(d)(iii), (v), (vi) or (vii) hereof to the date when the Company shall make available to the Selling Holders a Prospectus supplemented or amended to conform with the requirements of Section 3.1(g) hereof. In connection with such Registrationany registration of Registrable Securities pursuant to Section 2.2, the Company will take the actions contemplated by paragraphs (c), (d), (e), (i) and (j) above.
Appears in 1 contract
Samples: Registration Rights Agreement (Mariner Post Acute Network Inc)
Filings; Information. Whenever the Company is required Purchaser Representative requests that any Registrable Securities be registered pursuant to Section 5.1 hereof, Trico will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is practicable, and in connection with any such request:
3.1.1 (a) Trico will as expeditiously as possible (1) prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such on any form for which Trico then qualifies and which counsel for Trico shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 effective, and (2) prepare and file with the Commission SEC such amendments and post-effective amendments to the Registration Statement, and such supplements to such Registration Statement and the Prospectus, Prospectus used in connection with such Registration Statement as may be requested by necessary to keep such Registration Statement effective in order to dispose of the Holders or any Underwriter shares registered thereunder in the manner described in the underwriting agreement executed in connection therewith and to comply with the provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold Statement; provided, however, that Trico shall have no obligation to maintain the effectiveness of any registration statement filed hereunder or to cause the information therein to remain current (A) for more than 90 days following such Registration Statement's effective date in the case of a best efforts underwritten public offering or (B) for longer than such period as is customary and is required by the underwriter in the case of a firmly underwritten public offering; and further provided that if Trico shall furnish to the Purchaser Representative a certificate signed by a majority of the Board stating that in their good faith judgment it would be detrimental or otherwise disadvantageous to Trico or its stockholders for such a registration statement to be filed as expeditiously as possible, Trico shall have a period of not more than 90 days within which to file such registration statement measured from the date of Trico's receipt of the Purchaser Representative's request for registration in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Section 5.1 hereof.
3.1.3 (b) Trico will, if requested, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the UnderwritersParticipating Purchaser and each applicable managing underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Participating Purchasers and each such Holders’ legal counselunderwriter, if any, such number of copies of such Registration Statement as proposed to be filedStatement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents ) as the Underwriters and the Holders of Registrable Securities included in Participating Purchasers or each such Registration or the legal counsel for any such Holders underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) After the filing of the Registration Statement, Trico will promptly notify the Participating Purchasers of any stop order issued or, to Trico's knowledge, threatened to be issued by the SEC and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) Trico will use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things Purchaser Representative reasonably requests; provided that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall Trico will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection 5.5(d); (2) subject itself to taxation in any such jurisdiction; or take any action to which it would be subject (3) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) Trico will as promptly as is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 practicable notify the Holders Participating Purchasers, at any time when a Prospectus relating is required by law to be delivered in connection with sales by an underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus will not contain an 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 were made, not misleading and promptly make available to the Participating Purchasers and to the underwriters any such supplement or amendment. The Purchasers agree that, upon receipt of any notice from Trico of the occurrence of any event of the kind described in the preceding sentence, the Purchasers will, and the Purchasers shall require any other Participating Purchaser to, forthwith discontinue the offer and sale of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until receipt by the Participating Purchasers and the underwriters of the copies of such supplemented or amended Prospectus and, if so directed by Trico, the Participating Purchasers will deliver to Trico all copies, other than permanent file copies, then in the Participating Purchasers' possession of the most recent Prospectus covering such Registrable Securities at the time of receipt of such notice. In the event Trico shall give such notice, Trico shall extend the period during which such Registration Statement is shall be maintained effective as provided in Section 5.5(a) by the number of days during the period from and including the date of the giving of such notice to the date when Trico shall make available to the Participating Purchasers such supplemented or amended Prospectus.
(f) Trico will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to be delivered under expedite or facilitate the Securities Actsale of such Registrable Securities.
(g) Trico will furnish to the Participating Purchasers and to each underwriter a signed counterpart, addressed to the Participating Purchasers or such underwriter, of the happening an opinion or opinions of any event as counsel to Trico and a result of which the Prospectus included in such Registration Statementcomfort letter or comfort letters from Trico's independent public accountants, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the managing Underwriter case may reasonably requestbe, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, Purchaser Representative or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;underwriter reasonably requests.
3.1.14 (h) Trico will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement Statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the SEC thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, i) Trico will use its reasonable best efforts to make available senior executives cause all such Registrable Securities to be listed on each securities exchange or market on which the Common Stock is then listed.
(j) Trico may require the Participating Purchasers to furnish promptly in writing to Trico such information regarding such members, the plan of distribution of the Company Registrable Securities and other information as Trico may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Samples: Stockholders' Agreement (Inverness Phoenix Partners Lp)
Filings; Information. Whenever the Company is required to effect the registration of Alliant Energy has requested that any Registrable Securities be registered pursuant to Section 2this Agreement, the Company shall WPC will use its best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) WPC will as expeditiously as practicable, but in any event within 45 days of such request, prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which WPC then qualifies or which counsel for WPC shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof (it being understood that WPC shall use Form S-3 (or any substitute form that may be adopted by the SEC) if such form is then available to WPC and that Alliant Energy may, in the case of a Demand Registration, request that WPC file a "shelf" registration statement pursuant to Rule 415 under the Securities Act), and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective as soon as practicable and thereafter to remain effective until for a period of not less than 270 days unless all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;a lesser period.
3.1.3 (b) WPC will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the UnderwritersAlliant Energy, its counsel and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the foregoing within ten business days after delivery, and thereafter furnish to Alliant Energy, its counsel and each Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Alliant Energy, its counsel or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by Resources.
(c) After the filing of the registration statement, WPC will immediately notify Alliant Energy of any stop order issued or threatened by the SEC and will use its best efforts to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) WPC will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “"blue sky” " laws of such jurisdictions in the United States and such other jurisdictions as the Holders of Registrable Securities included in such Registration Statement Alliant Energy reasonably (in light of their Alliant Energy's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company WPC and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Resources to consummate the disposition of such the Registrable Securities in such jurisdictionsowned by it; provided, provided that the Company shall WPC will not be required to to
(A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.1(d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent(e) WPC will immediately notify Alliant Energy, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in effectthe light of the circumstances under which they were made, includes a Misstatementnot misleading, and then will promptly make available to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the UnderwritersAlliant Energy and each Underwriter, if any, any such supplement or amendment.
(f) WPC will enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in accordance with the intended plan of distribution of Alliant Energy. Alliant Energy may, at its option, require that any or all of the representations, warranties and covenants of WPC or to or for the benefit of such Underwriters also be made to and for the benefit of Alliant Energy and Resources.
(g) WPC will deliver promptly to Alliant Energy and each Underwriter, if any, copies of all correspondence between the SEC and WPC, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement and make available for inspection by Alliant Energy, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by Alliant Energy or such Holders or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of WPC as shall be reasonably necessary to participate, at each such person’s own expense, in the preparation of the Registration Statementenable them to perform a reasonable and customary due diligence investigation, and cause the Company’s WPC's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspector in connection with the Registration; providedsuch registration statement.
(h) WPC will furnish to Alliant Energy and to each Underwriter, that if any, a signed counterpart, addressed to Alliant Energy or such representatives Underwriter, of (i) an opinion or Underwriters enter into opinions of counsel to WPC and (ii) a confidentiality agreementcomfort letter or comfort letters from WPC's independent public accountants, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as Alliant Energy or the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agentUnderwriter, if any, therefor reasonably requests.
(i) WPC will use its best efforts to comply with all applicable rules and regulations of the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance lettersSEC, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(or any successor rule promulgated thereafter by j) In connection with an underwritten offering, WPC will, and will cause its management to participate, at WPC's expense, to the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be extent reasonably requested by the managing Underwriter in any Underwritten Offering; and
3.1.16 otherwisefor the offering or Alliant Energy, in good faithefforts to sell the Registrable Securities under the offering (including, cooperate reasonably withwithout limitation, participating in "road show" meetings with prospective investors) that would be customary for primary offerings of equity securities by WPC.
(k) WPC will appoint a transfer agent and take registrar for all of the Registrable Securities covered by such customary actions registration statement not later than the effective date of such registration statement.
(l) WPC will furnish unlegended certificates representing ownership of the Registrable Securities being sold in such denominations as may reasonably shall be requested by Alliant Energy or the Holders, managing Underwriter.
(m) WPC will use its best efforts to have the Registrable Securities sold in the offering listed on any domestic and foreign securities exchanges on which the Common Stock is then listed. WPC may require Alliant Energy to promptly furnish in writing to WPC such information regarding the distribution of the Registrable Securities as WPC may from time to time reasonably request and such other information as may be legally required in connection with such Registrationregistration. Alliant Energy agrees that, upon receipt of any notice from WPC of the occurrence of any event of the kind described in Section 3.1(e), Alliant Energy will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until Alliant Energy's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e). In the event WPC shall give such notice, WPC shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 3.1(a)) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) to the date when WPC shall make available to Alliant Energy a prospectus supplemented or amended to conform with the requirements of Section 3.1(e).
Appears in 1 contract
Samples: Registration Rights Agreement (Whiting Petroleum Corp)
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the registration and sale of such Registrable Securities in accordance with the intended plan method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request, use its best efforts to:
3.1.1 (a) within sixty (60) days after receipt of a request for a Demand Registration pursuant to Section 2.1(a), prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate, and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities and other securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter disposed of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn; provided, however, that the Company shall have the right to defer any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any Demand Registration to which such Piggy-Back Registration relates, and in such each case the Company shall furnish to the holders a certificate signed by the President or Chairman of the Company stating that, in the good faith judgment of the Board of Directors of the Company, it would be materially detrimental to the Company and its shareholders for such Registration Statement to be effected at such time; provided further, however, that the Company shall not have the right to defer the filing of a Demand Registration more than once in any 365-day period.
(b) prepare and file with the Commission such amendments, including post-effective amendments, and supplements to such Registration Statement and the prospectus used in connection therewith, as may be necessary to keep such Registration Statement effective and in compliance with the provisions of the Securities Act until all Registrable Securities and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or such securities have been withdrawn.
(c) promptly, and in any event within two (2) business days, notify the holders of Registrable Securities included in such Registration Statement of: (i) the filing of a Registration Statement, (ii) the effectiveness of a Registration Statement, (iii) when any post-effective amendment to such Registration Statement becomes effective; (iv) the issuance or threatened issuance by the Commission of any stop order (and the Company shall take all actions required to prevent the entry of such stop order or to remove it if entered); and (v) any request by the Commission for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or of the Prospectus;occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an 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 promptly make available to the holders of Registrable Securities included in such Registration Statement any such supplement or amendment.
3.1.3 (d) prior to filing a Registration Statement or Statement, prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders holders of Registrable Securities included in such Registrationregistration, and such Holdersholders’ legal counsel, copies of such Registration Statement documents as proposed to be filed, each amendment filed and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders holders of Registrable Securities included in such Registration registration or the their legal counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;holders and to provide such holders and legal counsel with a reasonable opportunity to review such documents and comment thereon, and the Company shall not file any Registration Statement or prospectus or amendment or supplement thereto, including documents incorporated by reference, to which such holders or their legal counsel shall object.
3.1.4 prior (e) take such action necessary to any public offering of Registrable Securities, use its best efforts to (i) register or qualify cause the Registrable Securities covered by the Registration Statement to be registered or qualified under such securities or “blue sky” laws of such jurisdictions in the United States as the Holders holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company Company, and do any and all other acts and things that may be necessary or advisable to enable the Holders holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or take any action subject itself to which it would be subject to general service of process or taxation in any such jurisdiction where it jurisdiction.
(f) enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the holders of Registrable Securities included in such registration statement. No holder of Registrable Securities included in such registration statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such holder’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such sale with such holder’s material agreements and organizational documents, and with respect to written information relating to such holder that such holder has furnished in writing expressly for inclusion in such Registration Statement.
(g) make available for inspection by the holders of Registrable Securities included in such Registration Statement, any Underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant, or other professional retained by any holder of Registrable Securities included in such Registration Statement or any Underwriter, all financial and other records, pertinent corporate documents, and properties of the Company, as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information requested by any of them in connection with such Registration Statement.
(h) furnish to each holder of Registrable Securities included in any Registration Statement a signed counterpart, addressed to such holder, of any opinion of counsel to the Company delivered to any Underwriter and any comfort letter from the Company’s independent public accountants delivered to any Underwriter. In the event no legal opinion is not then otherwise so subject;delivered to any Underwriter, the Company shall furnish to each holder of Registrable Securities included in such Registration Statement, at any time that such holder elects to use a prospectus, an opinion of counsel to the Company to the effect that the Registration Statement containing such prospectus has been declared effective and that no stop order is in effect.
3.1.5 (i) make available to its shareholders, as soon as practicable, an earnings statement covering a period of twelve (12) months, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(j) cause all such Registrable Securities included in any registration to be listed on each securities exchange such exchanges or automated quotation system on which otherwise designated for trading in the same manner as similar securities issued by the Company are then listed;
3.1.6 provide listed or designated or, if no such similar securities are then listed or designated, in a transfer agent or warrant agent, as applicable, and registrar for all such manner satisfactory to the holders of a majority of the Registrable Securities no later than the effective date of included in such Registration Statement;registration.
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5k) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders holders at any time when a Prospectus prospectus relating to such Registration Statement registration statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus prospectus included in such Registration Statementregistration statement, as then in effect, includes an untrue statement of a material fact or an omission to state a material fact required to be stated in a registration statement or prospectus, or necessary to make the statements therein in the light of the circumstances under which they were made not misleading (a “Misstatement”), and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationMisstatement.
Appears in 1 contract
Samples: Registration Rights Agreement (Union Acquisition Corp.)
Filings; Information. Whenever the Company is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1, the Company shall will use its reasonable best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible but in no event later than the time period prescribed by Section 2.1(a), prepare and file with the Commission as soon as practicable SEC a Registration Statement registration statement on Form S-3 (if use of such form is then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company then qualifies and which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of disposition of such Registrable Securities Securities), and use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Act or otherwise), and the Company will as expeditiously as possible prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the time periods prescribed by Section 2.1(b) and comply with the provisions of the Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission during such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold period in accordance with the intended plan methods of distribution disposition by the Investors set forth in such Registration Statement. Such Registration Statement or supplement to shall cover the Prospectus;resale of the Registrable Securities only. No other securities shall be registered under such Registration Statement.
3.1.3 (b) The Company will, prior to filing a Registration Statement or prospectus, prospectus or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge to the Underwriters, if any, Investors and one firm of counsel representing the Holders of Registrable Securities included in such Registration, and such Holders’ legal counselInvestors, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by such parties, and thereafter furnish to the Investors and their counsel for their review and comment such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investors or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities.
(c) After the filing of the Registration Statement, the Company will promptly notify the Investors of any stop order issued or threatened by the SEC in connection therewith and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Company will use its reasonable best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investors may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investors to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be (C) consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (e) The Company will promptly notify the Investors upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities: (i) the declaration of the effectiveness of a Registration Statement; (ii) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agent, as applicable, and registrar for all such Registrable Securities no later than any other federal or state governmental authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related prospectus; (iii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such the Registration Statement or the initiation of any proceedings for that purpose; (iv) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5v) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which makes any statement made in the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative Statement or related prospectus or any document incorporated or deemed to be selected incorporated therein by a majority reference untrue in any material respect or which requires the making of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, changes in the preparation of the Registration Statement, related prospectus or documents so that, the Registration Statement and cause the related prospectus 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 in the light of the circumstances in which they were made; and (vi) the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, 's reasonable determination that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majoritypost-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect effective amendment to the Registration in respect of which Statement would be appropriate; and the Company will promptly make available to the Investors any such opinion is being given as supplement or amendment to the Holders, placement agent, sales agent, or Underwriter may reasonably request related prospectus.
(f) The Company will enter into customary agreements and take such other actions as are customarily included reasonably required in order to expedite or facilitate the disposition of such opinions Registrable Securities (the Investors may, at their option, require that any or all of the representations, warranties and negative assurance letters, covenants of the Company also be made to and for the benefit of the Investors). The Investors understand that no sales of Shares may be found reasonably satisfactory underwritten and the Company is under no obligation to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement.
(g) The Company will otherwise comply with all applicable rules and regulations of the SEC, in usual including, without limitation, compliance with applicable reporting requirements under the Exchange Act of 1934, as amended (the "Exchange Act"), and customary form, with the managing Underwriters of such offering;
3.1.14 will make available to its security holders, as soon as reasonably practicable, an earnings earning statement covering the a period of at least twelve (12) months, beginning within three (3) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement Statement, which satisfies earning statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder Act.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, h) The Company will use its commercially reasonable efforts to make available senior executives secure designation of all such Registrable Securities covered by such Registration Statement as a Nasdaq "national market system security" within the meaning of Rule 11Aa2-1 of the SEC.
(i) The Company will appoint a transfer agent and registrar for all such Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement. The Company may require the Investors to participate promptly furnish in customary “road show” presentations that writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be reasonably requested by the Underwriter legally required in any Underwritten Offering; and
3.1.16 otherwiseconnection with such registration including, in good faithwithout limitation, cooperate reasonably with, and take all such customary actions information as may reasonably be requested by the HoldersSEC or the National Association of Securities Dealers, Inc. (the "NASD"). The Investors agree to provide such information as shall be reasonably requested in connection with such Registrationregistration within ten (10) business days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of the Registration Statement caused by the Investors' failure to timely provide such information. The Investors agree that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(e) hereof, the Investors will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until the Investors' receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof, and, if so directed by the Company, the Investors will deliver to the Company all copies, other than permanent file copies then in the Investors' possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when the Company shall make available to the Investors a prospectus supplemented or amended to conform with the requirements of Section 3.1(e) hereof.
Appears in 1 contract
Filings; Information. Whenever the Company is required a Large Shareholder requests that any Registrable Securities be registered pursuant to Section 2.1 hereof, FUNC will use its reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously soon as reasonably practicable, and in connection with any such request:
3.1.1 (a) FUNC will as soon as reasonably practicable prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which FUNC then qualifies and which counsel for FUNC shall deem appropriate and available for the sale of the Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan method of distribution set forth thereof, and use reasonable efforts to cause such filed registration statement to become and remain effective for a period of not less than 90 days; provided that if FUNC shall furnish to such Large Shareholder a certificate signed by its Chairman, Chief Executive Officer, Chief Financial Officer or any Executive Vice President stating that in his or her good faith judgment it would be detrimental or otherwise disadvantageous to FUNC or its shareholders for such Registration Statement or supplement a registration statement to be filed, or, in the case of an effective registration statement, for sales to be effected thereunder, FUNC shall have a period of not more than 120 days within which to file such registration statement measured from the date of receipt of such request in accordance with Section 2.1 or, in the case of an effective registration statement, FUNC shall be entitled to require such Large Shareholder to refrain from selling Registrable Securities under such registration statement for a period of up to 120 days. If FUNC furnishes a notice under this paragraph at a time when a registration statement filed pursuant to this Agreement is effective, FUNC shall extend the period during which such registration statement shall be maintained effective as provided in this Section 3.1(a) hereof by the number of days during the period from and including the date of the giving of notice under this paragraph to the Prospectus;date when sales under the registration statement may recommence.
3.1.3 (b) FUNC will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersLarge Shareholder requesting registration and each managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to such Holders’ legal counselLarge Shareholder and each such Underwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and prospectus) as such other documents as the Underwriters and the Holders of Registrable Securities included in Large Shareholder or such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, FUNC will promptly notify such Large Shareholder of any stop order issued or, to the knowledge of FUNC, threatened to be issued by the SEC and take all necessary actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) FUNC will use its best reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Large Shareholder reasonably (in light of their such Large Shareholder's intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things requests; provided that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall FUNC will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any jurisdiction or take any action (iii) consent to which it would be subject to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) FUNC shall, as promptly as reasonably practicable, notify each Large Shareholder that has sold, or is not then otherwise so subject;
3.1.5 cause all such selling, Registrable Securities hereunder, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of an event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, promptly after it shall receive notice such prospectus will not contain an untrue statement of a material fact or obtain knowledge thereof, of the issuance of omit to state any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is material fact required to be delivered stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and as promptly as practicable make available to each such Large Shareholder and to the Underwriters any such supplement or amendment. Each Large Shareholder, by requesting a registration or selling Registrable Securities Acthereunder, shall be deemed to agree with FUNC that, upon receipt of any notice from FUNC of the happening of any event as a result of which the Prospectus included kind described in the preceding sentence, such Registration StatementLarge Shareholder will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt of the copies of such supplemented or amended prospectus and, as if so directed by FUNC, such Large Shareholder will deliver to FUNC all copies, other than permanent file copies then in effectLarge Shareholder's possession, includes a Misstatementof the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event FUNC shall give such notice, and then to correct such Misstatement FUNC shall extend the period during which any registration statement shall be maintained effective as set forth provided in Section 3.4 hereof;
3.1.10 permit a representative 3.1(a) hereof by the number of days during the period from and including the date of the Holders giving of such notice to the date when FUNC shall make available such supplemented or amended prospectus.
(f) FUNC will enter into customary agreements (including an underwriting agreement in customary form and satisfactory in form and substance to FUNC in its reasonable judgment) and take such representative other actions as are reasonably required in order to be selected by a majority expedite or facilitate the sale of the participating Holders), the Underwriterssuch Registrable Securities.
(g) FUNC will furnish to each Large Shareholder that sells Registrable Securities hereunder and to each managing Underwriter, if any, a signed counterpart, addressed to such Large Shareholder and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney of (i) an opinion or accountant in connection with the Registration; providedopinions of counsel to FUNC and (ii) a comfort letter or comfort letters from FUNC's independent auditors pursuant to SAS 72, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, each in customary form and covering such matters of the type customarily covered by “comfort” opinions or comfort letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;parties.
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 (h) FUNC will make generally available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the SEC thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, i) FUNC will use its reasonable efforts to make available senior executives cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by FUNC are then listed. FUNC may require each Large Shareholder that requests a registration or is selling Registrable Securities hereunder promptly to furnish in writing to FUNC such information regarding such Large Shareholder, the plan of distribution of the Company Registrable Securities and other information as FUNC may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1, the Company shall will use its best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible, prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such Registrable Securities registration statement on the appropriate form and use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Act or otherwise), and the Company will as expeditiously as possible prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the time periods prescribed by Section 2.1(b) and comply with the provisions of the Act with respect to the disposition of all Registrable Securities securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission during such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold period in accordance with the intended plan methods of distribution disposition by the Investor set forth in such Registration Statement or supplement to the Prospectus;Statement.
3.1.3 (b) The Company will, prior to filing a Registration Statement or prospectus, prospectus or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge to the Underwriters, if any, Investor and one firm of counsel representing the Holders of Registrable Securities included in such Registration, and such Holders’ legal counselInvestor, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by such parties, and thereafter furnish to the Investor and its counsel for their review such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities.
(c) After the filing of the Registration Statement, the Company will promptly notify the Investor of any stop order issued or threatened by the SEC in connection therewith and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) The Company will use its best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be (C) consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (e) The Company will immediately notify the Investor upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities; (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agentany other federal or state governmental 3 EXHIBIT 10.40, as applicable, and registrar for all such Registrable Securities no later than PAGE 3 OF 8 authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result which makes any statement made in the Registration Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of which any changes in the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney related prospectus or accountant retained by such Holders or Underwriter to participate, at each such person’s own expensedocuments so that, in the preparation case of the Registration Statement, 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 the case of the related 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 were made, not misleading; and (vi) the Company's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
(f) The Company will enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (the Investor may, at its option, require that any or all of the representations, warranties and covenants of the Company also be made to and for the benefit of the Investor).
(g) The Company will make available to the Investor (and will deliver to Investor's counsel), subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such Registration Statement. Records which the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; providedprovided that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into fiduciary obligation to the Company) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such information is made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a confidentiality agreementcourt of competent jurisdiction, in form give notice to the Company and substance reasonably satisfactory allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to the Investor a signed counterpart, addressed to the Company, prior of an opinion or opinions of counsel to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from Company, upon which the Company’s independent registered public accountants in the event of an Underwritten RegistrationInvestor can rely, in customary form and covering such matters of the type customarily covered by “comfort” letters opinions, as the managing Underwriter may Investor therefor reasonably requestrequests. 4 EXHIBIT 10.40, PAGE 4 OF 8
(i) The Company will otherwise comply with all applicable rules and may be found reasonably satisfactory to a majority-in-interest regulations of the participating Holders;SEC, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
3.1.12 on the date the (j) The Company will appoint a transfer agent and registrar for all such Registrable Securities are delivered for sale pursuant to covered by such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after Statement not later than the effective date of such Registration Statement. The Company may require the Registration Statement which satisfies Investor to promptly furnish in writing to the provisions of Section 11(a) Company such information regarding the distribution of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter legally required in any Underwritten Offering; and
3.1.16 otherwiseconnection with such registration including, in good faithwithout limitation, cooperate reasonably with, and take all such customary actions information as may reasonably be requested by the Holders, SEC or the NASD. The Investor agrees to provide such information requested in connection with such Registrationregistration within ten (10) business days after receiving such written request and the Company shall not be responsible for (and the penalties specified in Section 2.1(c) shall not apply in respect of) any delays in obtaining or maintaining the effectiveness of the Registration Statement caused by the Investor's failure to timely provide such information. The Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(e) hereof, the Investor will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until the Investor's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof, and, if so directed by the Company, the Investor will deliver to the Company all copies, other than permanent file copies then in the Investor's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when the Company shall make available to the Investor a prospectus supplemented or amended to conform with the requirements of Section 3.1(e) hereof.
Appears in 1 contract
Filings; Information. Whenever the The Company is required to effect will facilitate the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the Investor's intended plan methods of distribution thereof disposition thereof. Without limiting the foregoing, the Company in each such case will do the following as expeditiously as practicablepossible, and but in connection with any such requestno event later than the deadline, if any, prescribed therefor in this Agreement:
3.1.1 (a) The Company shall prepare and file with the Commission as soon as practicable SEC a Registration Statement registration statement on Form S-1 or Form SB-2 (if use of such forms are then available to the Company pursuant to the rules of the SEC and, if not, on such other form promulgated by the SEC for which the Company then qualifies and which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of distribution of such Registrable Securities and Securities); use its reasonable best efforts to cause such filed Registration Statement to become effective and remain effective until (pursuant to Rule 415 under the Securities Act, if applicable, or otherwise); prepare and file with the SEC such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective during the term of this Agreement; prepare and file within one day after each Closing Date any prospectus supplement required under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file during such period in accordance with the Commission intended methods of disposition by the Investor set forth in such amendments and post-effective Registration Statement.
(b) The Company shall file all necessary amendments to the Registration StatementStatement in order to effectuate the purpose of this Agreement.
(c) If so requested by the managing underwriters, if any, or the holders of a majority in aggregate amount of the Registrable Securities being registered, the Company shall (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriters, if any, and such supplements holders agree should be included therein, and (ii) make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such prospectus supplement or post-effective amendment; provided, however, that the ProspectusCompany shall not be required to take any action pursuant to this Section 2.1(c)(ii) that would, as may be in the opinion of counsel for the Company, violate applicable law.
(d) In connection with the filing of a Registration Statement, the Company shall enter into such agreements and take all such other reasonable actions in connection therewith (including those reasonably requested by the Holders managing underwriters, if any, or any Underwriter the holders of a majority in aggregate principal amount of the Registrable Securities being sold) in order to expedite or as may facilitate the disposition of such Registrable Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, (i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company (including with respect to businesses or assets acquired or to be required acquired by the rulesCompany), regulations and the Registration Statement, prospectus and documents, if any, incorporated or instructions applicable 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, and confirm the same if and when requested; (ii) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the registration form used by selling holders of such Registrable Securities and the Company underwriters, if any, than those set forth herein (or by such other provisions and procedures acceptable to the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all holders of a majority in aggregate principal amount of Registrable Securities covered by such Registration Statement are sold and the managing underwriters, if any); and (iii) deliver such documents and certificates as may be reasonably requested by the holders of a majority in accordance aggregate principal amount of the Registrable Securities being sold, their counsel and the managing underwriters, if any, to evidence the continued validity of their representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the intended plan of distribution set forth in such Registration Statement underwriting agreement or supplement to other agreement entered into by the Prospectus;Company.
3.1.3 (e) Five Trading Days prior to filing a Registration Statement or prospectus, or any amendment or supplement theretothereto (excluding amendments deemed to result from the filing of documents incorporated by reference therein), furnish without charge the Company shall deliver to the Underwriters, if any, and the Holders seller of Registrable Securities included and counsel representing the seller of Registrable Securities, in such Registration, and such Holders’ legal counselaccordance with the notice provisions of Section 4.8, copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by such parties, and thereafter deliver to the seller of Registrable Securities and its counsel, in accordance with the notice provisions of Section 4.8, such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Investor or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities.
(f) After the filing of the Registration Statement, the Company shall promptly notify the Investor of any stop order issued or threatened by the SEC in connection therewith and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (g) The Company shall use its reasonable best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Investor may reasonably (in light of their its intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Investor to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, provided that the Company shall will not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (g), subject itself to taxation in any such jurisdiction, or take any action to which it would be consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (h) The Company shall immediately notify the Investor upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities: (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent SEC or warrant agent, as applicable, and registrar for all such Registrable Securities no later than any other federal or state governmental authority during the effective date period of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such the Registration Statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result that makes any statement made in the Registration Statement 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 any changes in the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney related prospectus or accountant retained by such Holders or Underwriter to participate, at each such person’s own expensedocuments so that, in the preparation case of the Registration Statement, 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 the case of the related 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 were made, not misleading; and (v) the Company's reasonable determination that a post-effective amendment to the Registration Statement would be appropriate; and the Company will promptly make available to the Investor any such supplement or amendment to the related prospectus.
(i) The Company shall enter into customary agreements and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (whereupon the Investor may, at its option, require that any or all of the representations, warranties and covenants of the Company also be made to and for the benefit of the Investor).
(j) The Company shall make available to the Investor (and will deliver to Investor's counsel), subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and will also make available for inspection by the Investor and any attorney, accountant or other professional retained by the Investor (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors 's officers and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such Registration Statement. Records that the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; providedprovided that prior to any disclosure or release pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and, provided further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. The Investor agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Investor after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into fiduciary obligation to the Company) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its affiliates unless and until such information is made generally available to the public. The Investor further agrees that it will, upon learning that disclosure of such Records is sought in a confidentiality agreementcourt of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(k) The Company shall deliver, in form and substance reasonably satisfactory accordance with the notice provisions of Section 4.8, to the Investor a signed counterpart, addressed to the Investor, of (1) an opinion or opinions of counsel to the Company, prior in such form reasonably acceptable to the release Investor, and (2) to the extent required by law or disclosure reasonably necessary to effect a sale of Registrable Securities in accordance with prevailing business practices at the time of any such information;
3.1.11 obtain sale of Registrable Securities pursuant to a “comfort” Registration Statement, a comfort letter or comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the managing Underwriter case may be, as the Investor therefore reasonably request, requests.
(l) The Company shall otherwise comply with all applicable rules and may be found reasonably satisfactory to a majority-in-interest regulations of the participating Holders;SEC, including, without limitation, compliance with applicable reporting requirements under the Exchange Act.
3.1.12 on the date the (m) The Company shall appoint a transfer agent and registrar for all such Registrable Securities are delivered for sale pursuant to covered by such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after Statement not later than the effective date of such Registration Statement.
(n) The Company may require the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds Investor to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives of the Company to participate in customary “road show” presentations that such information as may be reasonably requested by the Underwriter legally required in any Underwritten Offering; and
3.1.16 otherwiseconnection with such registration including, in good faithwithout limitation, cooperate reasonably with, and take all such customary actions information as may reasonably be requested by the Holders, SEC or the National Association of Securities Dealers. The Investor agrees to provide such information requested in connection with such Registrationregistration within ten (10) business days after receiving such written request and the Company shall not be responsible for any delays in obtaining or maintaining the effectiveness of the Registration Statement directly caused by the Investor's failure to timely provide such information.
Appears in 1 contract
Samples: Registration Rights Agreement (Select Media Communications Inc)
Filings; Information. Whenever a Holder requests that any Registrable Securities be registered pursuant to Section 2.1 or 2.3 hereof, the Company is required will use its reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof (including in a Rule 415 offering), and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective as promptly as practicable, and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 thereafter prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by necessary to keep such registration statement effective for a period of not less than (i) 120 days in the Holders or case of any Underwriter registration that is not a Shelf Registration, and (ii) in the case of a Shelf Registration, until the earlier of (x) such time as all of the Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold shall have been disposed of in accordance with the intended plan methods of distribution set forth in such Registration Statement or supplement to registration statement, and (y) the Prospectus;third anniversary of the effective date of such registration statement.
3.1.3 (b) The Company will, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to each such Holders’ legal counselHolder and Underwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and prospectus) as each such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) The Company will promptly notify each Selling Holder of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered (and in the event any stop order is issued, the Selling Holders may withdraw their request for registration, in which case such request will not be deemed a Demand Registration hereunder).
3.1.4 prior (d) The Company will endeavor to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionseach Selling Holder reasonably requests; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the (e) The Company are then listed;
3.1.6 provide a transfer agent or warrant agentwill, as applicablepromptly as is practicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise notify each seller of such Registrable SecuritiesSelling Holder, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such Registration Statement is prospectus so that, as thereafter delivered to the purchasers of such securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be delivered stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and promptly make available to such Holders and to the Underwriters any such supplement or amendment. Each Selling Holder, by exercising its registration rights hereunder, agrees that, upon receipt of any notice from the Company of the occurrence of any event of the kind described in the preceding sentence, such Holder will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by such Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, each Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.1(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to each Selling Holding such supplemented or amended prospectus.
(f) In the event that, prior to the time that the Company is eligible to use Form S-3 for a secondary offering pursuant to Rule 415 under the Securities Act, of the happening of any event as a result of which the Prospectus included Holder or Holders request a Shelf Registration in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in accordance with Section 3.4 2.1(c) hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the UnderwritersCompany may take all action necessary to convert the registration statement to a registration statement on Form S-3 on or after the date that the Company is so eligible to use Form S-3 for a secondary offering.
(g) The Company will enter into customary agreements (including an underwriting agreement in customary form containing customary lock-up provisions extending up to 90 days) and take such other actions as are reasonably required in order to expedite or facilitate the sale of such Registrable Securities.
(h) The Company will furnish to each Selling Holder and to each Underwriter a signed counterpart, if any, and any attorney addressed to such Holder or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney of (i) an opinion or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory opinions of external and/or internal counsel to the Company, prior to the release Company and (ii) a comfort letter or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as such Holder or the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;requests.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the (i) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, j) The Company will use its reasonable efforts to make available senior executives cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed.
(k) Upon request of the managing Underwriter, the Company will use its best efforts to cause such members of management as are requested by such Underwriter to participate in the preparation and presentation of a "road show" with respect to any offering pursuant to Section 2.1 or 2.3 hereof.
(l) Subject to execution of confidentiality agreements satisfactory in form and substance to the Company in the exercise of reasonable judgment, the Company will give the Selling Holders and the Underwriters, if any, and their respective counsel and accountants (i) reasonable and customary access to its books and records and (ii) such opportunities to discuss the business of the Company with its directors, officers, employees, counsel and the independent public accountants who have certified its financial statements, as shall be appropriate, in the reasonable judgment of counsel for such Selling Holders and/or Underwriters, to participate conduct a reasonable investigation within the meaning of the Securities Act. The Company may require each Selling Holder promptly to furnish in customary “road show” presentations that writing to the Company such information regarding such Holder, the plan of distribution of the Registrable Securities and other information as the Company may from time to time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (General Cable Corp /De/)
Filings; Information. Whenever any Registrable Common Stock is to be registered pursuant to this Section 4, the Company is required will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof Common Stock as expeditiously promptly as is practicable, and in connection with any such request:
3.1.1 4.6.1. The Company will (a) as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement registration statement on any form for which the Company then qualifies and which counsel for the Company deems appropriate and available for the sale of the Registrable Common Stock to be registered thereunder in accordance with respect to such Registrable Securities and the intended method of distribution thereof, (b) use its commercially reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until for a period of not less than 90 days (or such shorter period in which all Registrable Securities covered by Common Stock of the Holders included in such Registration Statement have registration has actually been sold;
3.1.2 sold thereunder) and (c) prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or such registration statement as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by comply with the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Act.
3.1.3 4.6.2. The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to each Holder of Registrable Common Stock participating in such registration (the Underwriters“Registering Holders”) and each managing underwriter, if anycopies thereof, and the Holders thereafter furnish to each Registering Holder and each such underwriter such number of Registrable Securities included in such Registration, and such Holders’ legal counsel, copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Holders of Registrable Securities included in such Registration Registering Holder or the legal counsel for any such Holders underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Common Stock.
4.6.3. After the filing of the registration statement, the Company will promptly notify each Registering Holder of any stop order issued or, to the Company’s knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior 4.6.4. The Company will endeavor to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement Common Stock for offer and sale under such state securities or “blue sky” sky laws of such jurisdictions in the United States as the Registering Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may reasonably request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify qualify, (ii) subject itself to taxation in any such jurisdiction, or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
4.6.5. The Company will as promptly as is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on practicable notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agentRegistering Holder, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to the sale of the Registrable Common Stock is required by law to be delivered in connection with any such Registration Statement is sale, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be delivered stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each Registering Holder and to the Securities Actunderwriters any such supplement or amendment. Upon receipt of any notice from the Company of the occurrence of any such event, each Registering Holder will forthwith discontinue the offer and sale of Registrable Common Stock pursuant to the registration statement covering such Registrable Common Stock until receipt by the Registering Holder and the underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Registering Holder will deliver to the Company all copies, other than permanent file copies then in the Registering Holder’s possession, of the happening most recent prospectus covering such Registrable Common Stock at the time of any receipt of such notice. In the event as a result of the Company gives such notice, the Company will extend the period during which such registration statement is required by Section 4.6.1 to be effective by the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative period from the date of the Holders giving of such notice to the date when the Company makes available to the Registering Holder such supplemented or amended prospectus.
4.6.6. The Company will enter into customary agreements (including an underwriting agreement in customary form containing representations, provisions regarding indemnification and contribution and other usual provisions) and take such representative other actions as are reasonably required in order to be selected by a majority expedite or facilitate the sale of the participating Holders)such Registrable Common Stock, the Underwriters, if any, and any attorney or accountant retained by including without limitation including such Holders or Underwriter to participate, at each such person’s own expense, information in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information prospectus as is reasonably requested by any such representative, Underwriter, attorney or accountant the managing underwriter and making management available to participate in connection with a customary “roadshow” as reasonably requested by the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory managing underwriter.
4.6.7. The Company will furnish to the CompanyRegistering Holders and to each underwriter a signed counterpart, prior addressed to the release Registering Holders or disclosure underwriter, of any such information;
3.1.11 obtain a “comfort” letter from (a) an opinion or opinions of counsel to the Company’s independent registered public accountants in the event of an Underwritten Registration, Company in customary form and covering such matters of the type customarily covered by “comfort” letters such opinions as the Registering Holder or the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to (b) a majority in interest letter from the independent certified public accountants of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreementCompany, in usual form and customary form, with the managing Underwriters of such substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering;.
3.1.14 4.6.8. The Company will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement 12 months, which earnings statement satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);rules and regulations of the Commission thereunder.
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, 4.6.9. The Company will use its all commercially reasonable efforts to make available senior executives of cause all such Registrable Common Stock to be listed on each securities exchange on which the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in Common Stock is then listed or, if not so listed, on a national securities exchange or quoted on any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationnational quotation system.
Appears in 1 contract
Filings; Information. Whenever In connection with the registration of Registrable Securities pursuant to Section 2.01, Section 2.02 and Section 2.03 hereof, the Company is required will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of such securities, (ii) with respect to the Shelf Registration, until the sale of all Registrable Securities thereunder; PROVIDED, that if the Company shall furnish to the Selling Holder a certificate signed by the Company's Chairman, Chief Executive Officer, President or any Executive or Senior Vice-President stating that the Company's Board of Directors has determined in good faith that it would be detrimental or otherwise disadvantageous to the Company or its stockholders for such a registration statement to be filed as expeditiously as possible because the sale of Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the Commission such amendments and post-effective amendments public disclosure of which at the time would be materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a registration statement for a period of not more than 120 days; PROVIDED, that during any 365-day period the Company shall use its reasonable best efforts to permit a period of at least 120 consecutive days during which the Company will make a registration statement available under this Agreement; and PROVIDED, FURTHER, that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statementwould otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financials as of the end of such supplements fiscal year, the Company may delay the effectiveness of such registration statement for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year.
(b) Anything in this Agreement to the Prospectuscontrary notwithstanding, as may it is understood and agreed that the Company shall not be requested by required to keep any shelf registration effective or useable for offers and sales of the Registrable Securities, file a post effective amendment to a shelf registration statement or prospectus supplement or to supplement or amend any registration statement, if the Company is then involved in discussions concerning, or otherwise engaged in, any material financing or investment, acquisition or divestiture transaction or other material business purpose if the Company determines in good faith that the making of such a filing, supplement or amendment at such time would interfere with such transaction or purpose. The Company shall promptly give the Holders or any Underwriter of Registrable Securities or as may be required written notice of such postponement containing a general statement of the reasons for such postponement and an approximation of the anticipated delay, which delay shall last no longer than 90 days, no more than once during any 365-day period. Upon receipt by a Holder of Registrable Securities of notice of an event of the ruleskind described in this Section 3.01(b), regulations or instructions applicable to the registration form used by such Holder shall forthwith discontinue such Holder's disposition of Registrable Securities until such Holder's receipt of notice from the Company that such disposition may continue and of any supplemented or by the Securities Act or rules and regulations thereunder amended prospectus indicated in such notice. The Company shall use its reasonable best efforts to keep the Registration Statement effective until all permit sales of Registrable Securities covered by on such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;shelf registration statement for at least 120 days during any 365-day period.
3.1.3 (c) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(d) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (e) The Company will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; providedPROVIDED, that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(e), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(f) The Company will as promptly as is practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders will deliver to the Company all copies, other than permanent file copies then otherwise so subject;in the possession of Selling Holders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Selling Holders such supplemented or amended prospectus.
3.1.5 cause all (g) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are required in order to expedite or facilitate the sale of such Registrable Securities.
(h) At the request of any managing Underwriter in connection with an underwritten offering the Company will furnish (i) an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from the Company's independent public accountants covering such customary matters as the managing Underwriter may reasonably request.
(i) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post effective amendment.
(j) The Company shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; PROVIDED, HOWEVER, that unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (j) if (A) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) if either (1) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (A) or (B) such Holder of Registrable Securities requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; PROVIDED, FURTHER, however, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(k) The Company shall cause the Registrable Securities included in any registration statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;, or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify.
3.1.6 (l) The Company shall provide a transfer agent or warrant agent, as applicable, and registrar CUSIP number for all such the Registrable Securities no included in any registration statement not later than the effective date of such Registration Statement;registration statement.
3.1.7 advise (m) The Company shall cooperate with each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of Selling Holder and each Underwriter participating in the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller disposition of such Registrable Securities or its counsel;and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.
3.1.9 notify (n) The Company shall during the Holders at any time period when a Prospectus relating to such Registration Statement the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;Exchange Act.
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the o) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, p) The Company will use its commercially reasonable efforts to make available senior executives cause all such Registrable Common Stock and, in the event of a public offering of Series B Preferred Stock, the Series B Preferred Stock (subject to applicable listing requirements) to be listed on each securities exchange or quoted on each inter-dealer quotation system on which the Common Stock is then listed or quoted. The Company may require Selling Holders promptly to furnish in writing to the Company such information regarding such Selling Holders, the plan of distribution of the Registrable Securities and other information as the Company may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, . the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders Xxxxx, Xxxxxxx or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to Xxxxx, Xxxxxxx, the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, its and such Holders’ their legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as Xxxxx, Xxxxxxx, the Underwriters Underwriters, and the Holders of Registrable Securities included in such Registration or the its and their legal counsel for any such Holders counsel, may request in order to facilitate the disposition of the Registrable Securities owned by such HoldersSecurities;
3.1.4 notify Cowen and Chardan promptly after the Company receives notice thereof, of the time when such Registration Statement (and any amendment thereto) has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed with the Commission and (to the extent relevant) declared effective;
3.1.5 prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as Cowen and/or Chardan, as the Holders of Registrable Securities included in such Registration Statement case may be (in light of its or their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Cowen and/or Chardan to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 3.1.6 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 3.1.7 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 3.1.8 notify Cowen and Chardan promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
3.1.9 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 3.1.10 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 3.1.11 notify the Holders Cowen and Chardan at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 3.1.12 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders)Xxxxx, Xxxxxxx, the Underwriters, if any, and any attorney or accountant retained by such Holders Xxxxx, Xxxxxxx or Underwriter the Underwriters to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 3.1.13 obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest each of the participating HoldersCowen and Chardan;
3.1.12 3.1.14 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the HoldersCowen and Chardan, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as Xxxxx, Xxxxxxx, the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest each of the participating HoldersCowen and Chardan;
3.1.13 3.1.15 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters Underwriter of such offering;
3.1.14 3.1.16 make available to its security holdersstockholders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 3.1.17 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 3.1.18 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the HoldersCowen or Chardan, in connection with such Registration.
Appears in 1 contract
Filings; Information. Whenever the Company Parent requests that any Registrable Securities be registered pursuant to Section 3.01 hereof, the Parent shall indicate whether the request is required for a Shelf Registration or an Underwritten Registration. Buyer will thereupon use Reasonable Best Efforts to effect the requested registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously soon as is practicable, and in connection with any such request:
3.1.1 (a) The Buyer will use its Reasonable Best Efforts to prepare and file with the Commission SEC as soon as practicable a Registration Statement with respect to such on any form for which the Buyer then qualifies and which counsel for the Buyer shall deem appropriate and available for the sale of the Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended method of distribution thereof, and use Reasonable Best Efforts to cause such filed Registration Statement to become and remain effective for up to 90 days in the case of an Underwritten Registration and 12 months in the case of a Shelf Registration; provided, that, at least five (5) Business Days prior to filing any registration statement or prospectus or any amendments or supplements thereto, the Buyer will furnish to the Parent and its counsel copies of all such documents proposed to be filed and any such holder shall have the opportunity to comment on any information pertaining to the Parent and its plan of distribution set forth that is contained therein and the Buyer shall make the corrections reasonably requested by the Parent with respect to such information prior to filing any such registration statement or amendment; and provided further that, the Buyer’s obligations to use Reasonable Best Efforts to file or maintain the effectiveness of the Registration Statement shall be suspended for up to 90 days if the Buyer shall furnish to the Parent a certificate signed by the Buyer’s Chief Executive Officer stating that in his reasonable good faith judgment the fulfillment of the foregoing obligations would (i) require the Buyer to make a disclosure that would be detrimental to the Buyer, or (ii) occur at a time when the price or exchange ratio at which the Buyer is obligated to issue securities (other than Buyer employee or officer and director stock options or restricted stock grants) is being determined, except that the foregoing obligations of the Buyer shall be reinstated upon the making of such disclosure by the Buyer or expiration or termination of the circumstances referred to in clause (ii) above (or, if earlier, when such disclosure would no longer be necessary for the fulfillment of the foregoing obligations or no longer be detrimental). Notwithstanding the foregoing, Buyer may suspend a Demand Registration under this Section 3.04 for not more than a cumulative period of 105 days in any 12-month period. If, during the period a Demand Registration is permitted to be suspended under this Section 3.04(a), Buyer does not also suspend the filing or effectiveness, as applicable, of any other Registration Statement covering the resale of securities of the Buyer for the account of any other stockholder of the Buyer, then Buyer shall not suspend the Demand Registration unless, and to the extent that, any such other Registration Statement is suspended.
(b) Notwithstanding anything to the contrary in this Agreement, at the request of the Buyer, the Parent shall not, directly or indirectly, make sales of any Registrable Securities during the period commencing upon the filing of any Registration Statement by the Buyer to register a Public Offering for its own account and ending 30 days following the closing of such Public Offering (such period not to exceed 150 days), provided, that the Parent is given the opportunity (whether or not accepted by the Parent) to include at least 2,500,000 Shares (as adjusted for any Adjustment Event) in such Public Offering.
(c) The Buyer will, if requested, prior to filing such Registration Statement or supplement to the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the UnderwritersParent and each applicable managing underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Parent and each such Holders’ legal counselunderwriter, if any, such number of copies of such Registration Statement as proposed to be filedStatement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Holders of Registrable Securities included in Parent or each such Registration or the legal counsel for any such Holders underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(d) After the filing of the Registration Statement, the Buyer will promptly notify the Parent of any stop order issued or, to the Buyer’s knowledge, threatened to be issued by the SEC and shall use Reasonable Best Efforts to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior (e) The Buyer will use Reasonable Best Efforts to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions jurisdiction in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsParent reasonably requests; provided, provided that the Company shall Buyer will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.04(e), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(f) The Buyer will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify the Parent, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it shall receive make available to the Parent and to the underwriters any such supplement amendment. The Parent agrees that, upon receipt of any notice from the Buyer of the occurrence of any event of the kind described in the preceding sentence, the Parent will forthwith discontinue the offer and sale of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until receipt by the Parent and the underwriters of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Buyer, the Parent will deliver to the Buyer all copies, other than permanent file copies then in the Parent’s possession, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order by receipt of such notice. In the Commission suspending event the effectiveness of Buyer shall give such notice, the Buyer shall extend the period during which such Registration Statement or shall be maintained effective as provided in Section 3.04(a) hereof by the initiation or threatening number of any proceeding for days during the period from and including the date of the giving of such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior notice to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify date when the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory Buyer shall make available to the Company, prior to Parent such supplemented or amended prospectus.
(g) In the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event case of an Underwritten Registration, the Buyer will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably requested by Parent in order to expedite or facilitate the sale of such Registrable Securities, including but not limited to attendance by the Buyer’s Chief Executive Officer and any other Buyer officers as may be reasonably requested by the Parent, at any investor presentation or any “road shows” undertaken in connection with the marketing or selling of the Registrable Securities provided that the Buyer’s Chief Executive Officer and such Buyer officers (if any) shall not be required to participate in any such presentations or “road show” for more than five Business Days in connection with each Underwritten Registration.
(h) In the case of an Underwritten Registration, the Buyer will use its Reasonable Best Efforts to furnish to each underwriter (i) an opinion or opinions of counsel to the Buyer and (ii) a comfort letter or comfort letters from the Buyer’s independent public accountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the managing Underwriter may underwriter reasonably requests.
(i) As a condition to Buyer’s obligation to register Registrable Securities under this Agreement, Parent shall, promptly upon request, and may be found reasonably satisfactory furnish in writing to a majority-in-interest the Buyer such information regarding the Parent, the plan of the participating Holders;
3.1.12 on the date distribution of the Registrable Securities are delivered for sale pursuant and such other information as the Buyer may from time to time reasonably request in writing or as may be legally required in connection with such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holdersregistration. In addition, the placement agent or sales agentParent shall complete and execute all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of any underwriting arrangements and the provisions of this Agreement.
(j) In connection with the preparation and filing of each registration statement registering Registrable Securities under the Securities Act, the Buyer shall give, upon reasonable notice and during normal business hours, the Parent, its underwriters, if any, and their respective counsel and accountants access to its books and records and an opportunity to discuss the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest business of the participating Holders;
3.1.13 Buyer with its officers and the independent public accountants who have certified its financial statements as shall be necessary, in the event opinion of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with Parent’s or such underwriters’ counsel to conduct a reasonable investigation within the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions meaning of Section 11(a11(b)(3) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationAct.
Appears in 1 contract
Samples: Shareholder Agreement (Lionbridge Technologies Inc /De/)
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities are to be registered pursuant to Section 22.1 hereof, the Company shall will use its best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible (and in any event within the time period specified in Section 2.1 (a)) prepare and file with the Commission as soon as practicable a Registration Statement with respect to such on any form for which the Company then qualifies or which counsel for the Company and counsel for the Selling Holders shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and if the offering is an underwritten offering, shall be reasonably satisfactory to the managing Underwriter or Underwriters. The Company will use its reasonable best efforts to cause such filed Registration Statement to become effective and remain continuously effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;Section 2. l(b).
3.1.3 (b) The Company will, prior to filing a Registration Statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, Registration Statement copies of such Registration Statement as proposed to be filed, and thereafter furnish to such Selling Holder and Underwriter, if any, such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the Registration Statement, the Company will promptly notify each Selling Holder of Registrable Securities, Securities covered by such Registration Statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder or managing Underwriter reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder and the Holders of Registrable Securities included in such Registration Statement Underwriters, if any, to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (e) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agentSelling Holder, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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, in effect, includes a Misstatementlight of the circumstances in which they were made, and then promptly file with the Commission and make available to correct each Selling Holder any such Misstatement supplement or amendment.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form if the offering is an underwritten offering) and take such other actions as set forth are reasonably required in Section 3.4 hereof;
3.1.10 permit a representative order to expedite or facilitate the disposition of the Holders (such representative to be selected by a majority of the participating Holders)Registrable Securities, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expenseincluding, in the preparation case of an offering pursuant to Section 2.1, cooperating in the marketing efforts of the Underwriters and the Selling Holders by, among other things, making available, as reasonably requested by the Underwriters and the Selling Holders, senior executive officers of the Company for attendance at, and active participation with the Underwriters in, informational meetings with prospective purchasers of the Registrable Securities being offered, including meeting with groups of such purchasers or with individual purchasers, providing information and answering questions about the Company at such meetings, and traveling to locations at reasonable times and as reasonably selected by the Underwriters.
(g) The Company will make available for inspection by any Selling Holder, any Underwriter participating in any disposition pursuant to such Registration StatementStatement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such Registration Statement. Records which the Registration; providedCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Selling Holder of such Registrable Securities agrees that information obtained by it as a result of such representatives inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such is made generally available to the public. Each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to each Selling Holder and to each Underwriter, if any, a signed counterpart, addressed to such Selling Holder or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory of(i) an opinion or opinions of counsel to the Company, prior to the release Company and (ii) a comfort letter or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the cased may be, as the holders of a majority of the Registrable Securities included in such offering or the managing Underwriter may therefor reasonably requestrequests.
(i) If requested by the Selling Holders, and may be found reasonably satisfactory to the Company will provide a majority-in-interest CUSIP number for all Registrable Securities not later than the effective date of the participating Holders;
3.1.12 on Registration Statement covering such Registrable Securities and provide the date Company's transfer agent(s) and registrar(s) for the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company with printed certificates for the purposes Registrable Securities.
(j) The Company will cooperate and assist in any filings required to be made with the NASD and in the performance of such Registration, addressed any due diligence investigation by any Underwriter (including any "qualified independent underwriter") that is required to be retained in accordance with the Holders, rules and regulations of the placement agent or sales agent, if anyNASD, and use its best efforts to cause such Registration Statement to become effective and approved by such governmental agencies or authorities as may be necessary to enable the Selling Holders or Underwriters, if any, covering to consummate the disposition of such legal matters Registrable Securities.
(k) The Company will otherwise use its best efforts to comply with respect to all applicable rules and regulations of the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance lettersCommission, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date commencement of any public offering of securities pursuant to the Registration Statement Statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder 11 (or any successor rule promulgated thereafter by the Commissiona);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Singapore Telecommunications LTD)
Filings; Information. Whenever the Company is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1 hereof, the Company shall will use its reasonable best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method(s) of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will prepare and file with the Commission as soon as practicable a Registration Statement with respect to the offer and sale of such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the completion of the distribution contemplated thereby; provided, however, the Company shall not be required to keep such Registration Statement effective for more than 12 months (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold;, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable).
3.1.2 (b) The Company will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Statement as may be requested by the Holders or any Underwriter of Registrable Securities or necessary to keep such Registration Statements effective for as may be long as such registration is required by the rules, regulations or instructions applicable to remain effective pursuant to the registration form used terms hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Company or by Securities Act; and comply with the provisions of the Securities Act or rules and regulations thereunder applicable to keep it with respect to the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold during the applicable period in accordance with the intended plan methods of distribution disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectus;.
3.1.3 (c) The Company, at least ten (10) Business Days prior to filing a Registration Statement or prospectus, a Prospectus or any amendment or supplement theretoto such Registration Statement or Prospectus, will furnish without charge to the Underwriters(i) each Selling Holder, (ii) not more than one counsel representing all Selling Holders ("Selling Holders Counsel"), to be selected by a majority-in-interest of such Selling Holders, and (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counselRegistration Statement, copies of such Registration Statement as proposed to be filed, together with exhibits thereto (whether or not incorporated by reference in such Registration Statement), which documents will be subject to review and approval by each of the foregoing within ten (10) Business Days after delivery (except that such review and approval of any Prospectus or any amendment and or supplement to such Registration Statement or Prospectus must be made within five (5) Business Days after delivery), and thereafter, furnish to such Selling Holders, Selling Holders' Counsel and Underwriters, if any, at the Company's expense, such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), ) and such other documents or information as the such Selling Holders, Selling Holders' Counsel or Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned (it being understood that the Company consents to the use of the Prospectus and any amendment or supplement thereto by such Holders;
3.1.4 prior to any public each Selling Holder and the Underwriters, if any, in connection with the offering and sale of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by such Prospectus or any amendment or supplement thereto). The Company shall provide the Holders' counsel and each Underwriter, if any, a copy of any and all transmittal letters or other correspondence to, or received from, the Commission or any other governmental body having jurisdiction relating to the offering.
(d) The Company will use its reasonable best efforts to prevent the entry of any stop order or to remove it at the earliest possible moment if entered.
(e) [Section Reserved].
(f) The Company will promptly notify each Selling Holder, Selling Holders' Counsel and any Underwriter in writing, (i) of any request by the Commission or other regulatory body having jurisdiction over the Registration Statement under for any amendment or supplement to any Registration Statement or other document relating to the offering and sale of the Registrable Securities, (ii) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or the initiation or threatening of any proceedings for that purpose, and (iv) of the happening of any event which makes any statements made in a Registration Statement or related Prospectus or any document incorporated by reference therein untrue in a material respect or which requires the making of any changes in such securities Registration Statement, Prospectus or “blue sky” laws documents so that they will not to the best of the Company's knowledge 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 in the Registration Statement and Prospectus not misleading in light of the circumstances in which they were made; and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such Prospectus so that, as thereafter deliverable to the buyers of such jurisdictions Registrable Securities, such Prospectus will not to the best of the Company's knowledge contain any untrue statements of a material fact or omit to state a material fact necessary to make the statements therein, in light of the United States as circumstances under which they were made, not misleading, such amendment to be subject to the Holders Holders' review under Section 3.1(c). Each Selling Holder agrees that, upon receipt of any notice in writing from the Company of the happening of any event of the kind described in Section 3.1(f) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities included pursuant to the Registration Statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent Prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in light Section 3.1(a) hereof) by the number of their intended plan days during the period from and including the date of distributionthe giving of notice pursuant to Section 3.1(f) may request, and (ii) take such action necessary hereof to cause such Registrable Securities the date when the Company shall make available to the Selling Holders covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement a Prospectus supplemented or amended to consummate conform with the requirements of Section 3.1(f) hereof.
(g) The Company will make generally available an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than 120 days after the end of the 12 month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement, which earnings statement shall cover said 12 month period, and which requirement will be deemed to be satisfied if the Company files complete and accurate information on Forms 10-QSB, 10-KSB and 8-K under the Exchange Act in accordance with the applicable time periods and extensions provided by the Exchange Act and otherwise complies with Rule 158 under the Securities Act.
(h) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form and which is reasonably satisfactory to the Company) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in such jurisdictions; providedSecurities.
(i) The Company, that during the Company shall not be period when the Prospectus is required to qualify generally to do business in any jurisdiction where it would not otherwise be delivered under the Securities Act, will file all documents required to qualify be filed with the Commission pursuant to Section 13(a), 13(c), 14 or take any action 15(d) of the Exchange Act.
(j) The Company will use its reasonable best efforts to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or quoted on any automated quotation system on which similar securities issued by of the Company are then listed;
3.1.6 listed or quoted and enter into customary agreements, including a listing application in customary form; provided that the applicable listing requirements are satisfied, and to provide a transfer agent or warrant agent, as applicable, and registrar register for all such Registrable Securities covered by the Registration Statement no later than the effective date of such Registration Statement;.
3.1.7 advise each seller (k) The Company will make available for inspection by any Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order Securities covered by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of Statement, any proceeding for such purpose and promptly use its reasonable best efforts Underwriter participating in any disposition pursuant to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effectand any attorney, includes a Misstatementaccountant, or other agent retained by any such Holder or underwriter (collectively, the "Inspectors"), all financial and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative other records, pertinent corporate documents and properties of the Holders (Company as such representative Inspector shall deem necessary or desirable in order to be selected by permit it to conduct a majority reasonable investigation within the meaning of Section 11 of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, Securities Act and cause the Company’s 's officers, directors and employees to supply all information and respond to all inquiries reasonably requested by any such representative, Underwriter, attorney or accountant Inspector in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory Registration Statement. The rights granted to the Company, Inspectors in this Section 3(k) shall be conditioned upon the Inspectors agreeing to sign confidentiality agreements prior to the release receiving information or disclosure of any such information;
3.1.11 obtain a “comfort” letter documentation from the Company’s independent registered public accountants .
(1) The Company will, to the extent required in the event of connection with an Underwritten Registrationunderwritten offering, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory (i) use its reasonable best efforts to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain furnish an opinion, dated such date, opinion of counsel representing for the Company for the purposes of such Registration, addressed to the Holders, Underwriter and each Selling Holder and dated the placement agent or sales agent, date of the closing under the underwriting agreement (if any) (or if such offering is not underwritten, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after dated the effective date of the Registration Statement which satisfies the provisions of Section 11(aStatement), and (ii) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable best efforts to make available senior executives furnish a "cold comfort" letter addressed to each Selling Holder, if permissible under applicable accounting practices, and signed by the independent public accountants who have audited the Company's financial statements included in such Registration Statement, in each such case covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in underwritten pubic offerings of securities and such other matters as the Selling Holders may reasonably request and, in the case of such accountants' letter, with respect to events subsequent to the date of such financial statements.
(m) The Company will, not later than the effective date of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwiseRegistration Statement, in good faith, cooperate reasonably withprovide a CUSIP number for all Registrable Securities, and take such customary actions as may reasonably be requested by provide the Holdersapplicable transfer agents with printed certificates for the Registrable Securities, which are in connection a form eligible for deposit with such RegistrationThe Depository Trust Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Helpmate Robotics Inc)
Filings; Information. Whenever the Company is required to effect or cause the registration of any the offer and sale of Registrable Securities pursuant to Section 22.1 or 2.2 hereof, the Company shall will use its best efforts to effect the Registration to permit registration of the offer and the sale of such Registrable Securities in accordance with the intended plan method(s) of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company promptly will prepare and file with the Commission as soon as practicable a Registration Statement with respect to the offer and sale of such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the completion of the distribution contemplated thereby; provided, however, the Company shall not be required to keep such Registration Statement effective for more than 270 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold;, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable); provided, further, that with respect to a Demand Registration, the Company shall file with the Commission a Registration Statement as soon as is practicable after the date of the Request and in any event no later than 60 days after the date of the Request for the Demand Registration (the "Target Filing Date") and shall cause such Registration Statement to be declared effective as soon as is practicable after the date of filing and in any event no later than 120 days after the date of such Request (the "Target Effective Date"); provided, further however, that with respect to a Request for Demand Registration made prior to the first anniversary of the date hereof, other than with respect to a Request for Demand Registration made subsequent to a Preferred Stock Event of Default, the Company shall not be obligated to cause such Registration Statement to be declared effective prior to the first anniversary of the date hereof.
3.1.2 (b) The Company promptly will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Statement as may be requested by the Holders or any Underwriter of Registrable Securities or necessary to keep such Registration Statement effective for as may be long as such registration is required by the rules, regulations or instructions applicable to remain effective pursuant to the registration form used terms hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Company or by Securities Act; and comply with the provisions of the Securities Act or rules and regulations thereunder applicable to keep it with respect to the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold during the applicable period in accordance with the intended plan methods of distribution disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectus;.
3.1.3 (c) The Company, at least ten (10) Business Days prior to filing a Registration Statement or prospectus, at least five (5) Business Days prior to filing a Prospectus or any amendment or supplement theretoto such Registration Statement or Prospectus, will furnish without charge to the Underwriters(i) each Selling Holder, (ii) not more than one counsel representing all Selling Holders ("Selling Holders Counsel"), to be selected by a majority-in-interest of such Selling Holders, and (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, Registration Statement copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by each of the foregoing within five (5) Business Days after delivery (except that such review and approval of any Prospectus or any amendment and or supplement to such Registration Statement or Prospectus must be within three (3) Business Days after delivery), and thereafter, furnish to such Selling Holders, Selling Holders Counsel and Underwriters, if any, such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), ) and such other documents or information as the such Selling Holders, Selling Holders Counsel or Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned (it being understood that the Company consents to the use of the Prospectus and any amendment or supplement thereto by each Selling Holder and the Underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Holders;Prospectus or any amendment or supplement thereto).
3.1.4 (d) The Company promptly will notify each Selling Holder of (and in any event within 24 hours of the receipt of) any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it at the earliest possible moment if entered.
(e) On or prior to any public offering of Registrable Securitiesthe date on which the Registration Statement is declared effective, use its best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “"blue sky” " laws of such jurisdictions in the United States as the any Selling Holder, Selling Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with Counsel or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company Underwriter requests and do any and all other acts and things that which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition in such jurisdictions of such Registrable Securities owned by such Selling Holder; use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period which the Registration Statement is required to be kept effective; and use its best efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictionsjurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all (f) The Company will notify each Selling Holder, Selling Holders Counsel and any Underwriter promptly (and in any event within 24 hours) and (if requested by any such Registrable Securities Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information to be listed on each securities exchange included in any Registration Statement or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent Prospectus or warrant agentotherwise, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, (iii) of the issuance by the Commission of any stop order by the Commission suspending the effectiveness of such a Registration Statement or the initiation or threatening of any proceeding proceedings for such purpose and promptly use its reasonable best efforts to prevent that purpose, (iv) of the issuance by any state securities commission or other regulatory authority of any stop order suspending the qualification or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing exemption from qualification of any of the Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose, and (v) of the happening of any event which makes any statement made in a Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or related Prospectus or any document that is incorporated or deemed to be incorporated by reference into therein untrue or which requires the making of any changes in such Registration Statement, Prospectus or documents so that they 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 in the Registration Statement or Prospectusand Prospectus not misleading in light of the circumstances in which they were made; and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a copy thereof supplement or amendment to each seller such Prospectus so that, as thereafter deliverable to the buyers of such Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) The Company will make generally available an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than 90 days after the end of the 12- month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and otherwise complies with Rule 158 under the Securities Act.
(h) If requested by the managing Underwriter or Underwriters, Selling Holders Counsel, or any Selling Holder, the Company will, unless otherwise advised by counsel, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing Underwriter or Underwriters requests, or Selling Holders Counsel requests, to be included therein, including, without limitation, with respect to the Registrable Securities being sold by such Selling Holder to such Underwriter or Underwriters, the purchase price being paid therefor by such Underwriter or Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such Prospectus supplement or post-effective amendment.
(i) The Company will enter into customary agreements reasonably satisfactory to the Company (including, if applicable, an underwriting agreement in customary form and which is reasonably satisfactory to the Company) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (the Selling Holders, at their option, may require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such Underwriters also be made to and for the benefit of such Selling Holders).
(j) The Company will make available to each Selling Holder (and will deliver to their counsel) and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel;
3.1.9 notify counsel or auditors and will also make available for inspection at reasonable times at the Holders at Company's offices by any time when a Prospectus relating Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement.
(k) In connection with an underwritten offering, the Company will participate, to the extent reasonably requested by the managing Underwriter or Underwriters for the offering or the Selling Holders, in reasonable and customary efforts to sell the securities under the offering, including, without limitation, participating in "road shows."
(l) The Company, during the period when the Prospectus is required to be delivered under the Securities Act, promptly will file all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(m) The Company, if requested by Selling Holders, shall cause its outside legal counsel to deliver an opinion relating to the Registrable Securities, in customary form to such Selling Holders and any Underwriter therefor, cause its officers to execute and deliver all customary documents and certificates requested by any Underwriters of the Registrable Securities, and cause its independent public accountants to provide to such Selling Holders and any Underwriters therefor one or more comfort letters in customary form. The Company may require each Selling Holder to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration including, without limitation, all such information as may be requested by the Commission or the National Association of Securities Dealers, Inc. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth kind described in Section 3.4 3.1(f) hereof;
3.1.10 permit a representative , such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Selling Holder's receipt of the Holders (such representative to be selected by a majority copies of the participating Holders)supplemented or amended Prospectus contemplated by Section 3.1(f) hereof, the Underwritersand, if any, and any attorney or accountant retained so directed by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior such Selling Holder will deliver to the release or disclosure Company all copies, other than permanent file copies then in such Selling Holder's possession, of any the most recent prospectus covering such information;
3.1.11 obtain a “comfort” letter from Registrable Securities at the Company’s independent registered public accountants in time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of an Underwritten Registration, in customary form days during the period from and covering such matters including the date of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory giving of notice pursuant to a majority-in-interest of the participating Holders;
3.1.12 on Section 3.1(f) hereof to the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing when the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 shall make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning Selling Holders covered by such Registration Statement a Prospectus supplemented or amended to conform with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions requirements of Section 11(a3.1(f) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationhereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Moore Capital Management Inc /New)
Filings; Information. Whenever the Company is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1 or Section 2.2 , the Company shall will use its best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company promptly will prepare and file with the Commission as soon as practicable a Registration Statement with respect to the offer and sale of such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the completion of the distribution contemplated thereby; provided, however, the Company shall not be required to keep such Registration Statement effective for more than 180 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold;, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable).
3.1.2 (b) The Company promptly will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Statement as may be requested by the Holders or any Underwriter of Registrable Securities or necessary to keep such Registration Statement effective for as may be long as such registration is required by the rules, regulations or instructions applicable to remain effective pursuant to the registration form used terms hereof; cause the prospectus to be supplemented by any required prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Company or by Securities Act; and comply with the provisions of the Securities Act or rules and regulations thereunder applicable to keep it with respect to the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold during the applicable period in accordance with the intended plan methods of distribution disposition by Sellers set forth in such Registration Statement or supplement to the Prospectus;prospectus.
3.1.3 (c) The Company, at least ten (10) days prior to filing a Registration Statement or prospectus, at least five (5) days prior to filing a prospectus or any amendment or supplement theretoto such Registration Statement or prospectus, will furnish without charge to the Underwriters(i) Sellers, (ii) counsel representing Sellers, (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, Registration Statement copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by each of the foregoing within ten (10) days after delivery (except that such review and approval of any prospectus or any amendment and or supplement to such Registration Statement or prospectus must be within five (5) days after delivery), and thereafter, furnish to Sellers, counsel to Sellers and Underwriters, if any, for their review and comment such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents or information as Sellers, counsel to Sellers or the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities; provided, however, that notwithstanding the foregoing, if the Company intends to file any prospectus, prospectus supplement or prospectus sticker which does not make any material changes in the documents already filed (including, without limitation, any prospectus under Rule 430A or 424(b)), then counsel for Sellers will be afforded such opportunity to review such documents prior to filing consistent with the time constraints involved in filing such document, but in any event no less than three (3) days.
(d) The Company shall furnish to Sellers and to each Underwriter, if any, such number of copies of the Registration Statement (including each preliminary prospectus) as such Persons may reasonably request in order to facilitate the intended disposition of the Registrable Securities owned covered by such Holders;Registration Statement.
3.1.4 (e) If the offering is an underwritten offering, at the request of Sellers, the Company shall use its reasonable efforts to furnish on the date that Registrable Securities are delivered to the Underwriters for sale pursuant to such Registration Statement: (i) an opinion dated such date of counsel representing the Company for the purposes of such registration, addressed to the Underwriters and to Sellers, stating that (A) such Registration Statement has become effective under the Securities Act, (B) to the best knowledge of such counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (C) the Registration Statement complies as to form in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder, and such counsel has no reason to believe that the Registration Statement or any amendment thereto (including any documents incorporated in the prospectus), as of its respective effective date (or as of its date of filing) contains any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading (except that such counsel need not express any opinion as to financial statements contained therein) and (D) to such other effects as reasonably may be requested by counsel for the Underwriters or by Sellers or its counsel, considering customary comparable underwritten transactions and (ii) on such date and as of the date of the underwriting agreement, a letter dated such date from the independent public accountants or chartered accountants retained by the Company, addressed to the Underwriters and to Sellers, stating that they are independent public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement, comply as to form in all material respects with the applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (including information as to the period ending no more than five (5) Business Days prior to the date of such letter) with respect to such registration as such Underwriters reasonably may request considering customary comparable underwritten transactions.
(f) The Company promptly will notify Sellers of (and in any public offering event within twenty-four (24) hours of Registrable Securitiesthe receipt of) any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it at the earliest possible moment if entered.
(g) On or prior to the date on which the Registration Statement is declared effective by the Commission, the Company will use its best all reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such other jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Sellers reasonably (in light of their Sellers' intended plan of distribution) may requestrequests, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
Appears in 1 contract
Samples: Stock Purchase Agreement (Greystone Digital Technology Inc)
Filings; Information. Whenever the Company is required to effect or cause the registration of any the offer and sale of Registrable Securities pursuant to Section 22.1 or 2.2 hereof, the Company shall will use its best efforts to effect the Registration to permit registration of the offer and the sale of such Registrable Securities in accordance with the intended plan method(s) of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company promptly will prepare and file with the Commission as soon as practicable a Registration Statement with respect to the offer and sale of such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the completion of the distribution contemplated thereby; provided, however, the Company shall not be required to keep such Registration Statement effective for more than 270 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold;, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable); provided, further, that with respect to a Demand Registration, the Company shall file with the Commission a Registration Statement as soon as is practicable after the date of the Request and in any event no later than 60 days after the date of the Request for the Demand Registration (the "Target Filing Date") and shall cause such Registration Statement to be declared effective as soon as is practicable after the date of filing and in any event no later than 120 days after the date of such Request (the "Target Effective Date"); provided, further however, that with respect to a Request for Demand Registration made prior to the first anniversary of the date hereof, other than with respect to a Request for Demand Registration made subsequent to an Event of Default, the Company shall not be obligated to cause such Registration Statement to be declared effective prior to the first anniversary of the date hereof.
3.1.2 (b) The Company promptly will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Statement as may be requested by the Holders or any Underwriter of Registrable Securities or necessary to keep such Registration Statement effective for as may be long as such registration is required by the rules, regulations or instructions applicable to remain effective pursuant to the registration form used terms hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Company or by Securities Act; and comply with the provisions of the Securities Act or rules and regulations thereunder applicable to keep it with respect to the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold during the applicable period in accordance with the intended plan methods of distribution disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectus;.
3.1.3 (c) The Company, at least ten (10) Business Days prior to filing a Registration Statement or prospectus, at least five (5) Business Days prior to filing a Prospectus or any amendment or supplement theretoto such Registration Statement or Prospectus, will furnish without charge to the Underwriters(i) each Selling Holder, (ii) not more than one counsel representing all Selling Holders ("Selling Holders Counsel"), to be selected by a majority-in-interest of such Selling Holders, and (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, Registration Statement copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval by each of the foregoing within five (5) Business Days after delivery (except that such review and approval of any Prospectus or any amendment and or supplement to such Registration Statement or Prospectus must be within three (3) Business Days after delivery), and thereafter, furnish to such Selling Holders, Selling Holders Counsel and Underwriters, if any, such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), ) and such other documents or information as the such Selling Holders, Selling Holders Counsel or Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned (it being understood that the Company consents to the use of the Prospectus and any amendment or supplement thereto by each Selling Holder and the Underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by such Holders;Prospectus or any amendment or supplement thereto).
3.1.4 (d) The Company promptly will notify each Selling Holder of (and in any event within 24 hours of the receipt of) any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it at the earliest possible moment if entered.
(e) On or prior to any public offering of Registrable Securitiesthe date on which the Registration Statement is declared effective, use its best efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “"blue sky” " laws of such jurisdictions in the United States as the any Selling Holder, Selling Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with Counsel or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company Underwriter requests and do any and all other acts and things that which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition in such jurisdictions of such Registrable Securities owned by such Selling Holder; use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the period which the Registration Statement is required to be kept effective; and use its best efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictionsjurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all (f) The Company will notify each Selling Holder, Selling Holders Counsel and any Underwriter promptly (and in any event within 24 hours) and (if requested by any such Registrable Securities Person) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information to be listed on each securities exchange included in any Registration Statement or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent Prospectus or warrant agentotherwise, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, (iii) of the issuance by the Commission of any stop order by the Commission suspending the effectiveness of such a Registration Statement or the initiation or threatening of any proceeding proceedings for such purpose and promptly use its reasonable best efforts to prevent that purpose, (iv) of the issuance by any state securities commission or other regulatory authority of any stop order suspending the qualification or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing exemption from qualification of any of the Registrable Securities under state securities or "blue sky" laws or the initiation of any proceedings for that purpose, and (v) of the happening of any event which makes any statement made in a Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or related Prospectus or any document that is incorporated or deemed to be incorporated by reference into therein untrue or which requires the making of any changes in such Registration Statement, Prospectus or documents so that they 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 in the Registration Statement or Prospectusand Prospectus not misleading in light of the circumstances in which they were made; and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a copy thereof supplement or amendment to each seller such Prospectus so that, as thereafter deliverable to the buyers of such Registrable Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(g) The Company will make generally available an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than 90 days after the end of the 12-month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and otherwise complies with Rule 158 under the Securities Act.
(h) If requested by the managing Underwriter or Underwriters, Selling Holders Counsel, or any Selling Holder, the Company will, unless otherwise advised by counsel, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing Underwriter or Underwriters requests, or Selling Holders Counsel requests, to be included therein, including, without limitation, with respect to the Registrable Securities being sold by such Selling Holder to such Underwriter or Underwriters, the purchase price being paid therefor by such Underwriter or Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such Prospectus supplement or post-effective amendment.
(i) The Company will enter into customary agreements reasonably satisfactory to the Company (including, if applicable, an underwriting agreement in customary form and which is reasonably satisfactory to the Company) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities (the Selling Holders, at their option, may require that any or all of the representations, warranties and covenants of the Company to or for the benefit of such Underwriters also be made to and for the benefit of such Selling Holders).
(j) The Company will make available to each Selling Holder (and will deliver to their counsel) and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company, its counsel;
3.1.9 notify counsel or auditors and will also make available for inspection at reasonable times at the Holders at Company's offices by any time when a Prospectus relating Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement.
(k) In connection with an underwritten offering, the Company will participate, to the extent reasonably requested by the managing Underwriter or Underwriters for the offering or the Selling Holders, in reasonable and customary efforts to sell the securities under the offering, including, without limitation, participating in "road shows."
(l) The Company, during the period when the Prospectus is required to be delivered under the Securities Act, promptly will file all documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(m) The Company, if requested by Selling Holders, shall cause its outside legal counsel to deliver an opinion relating to the Registrable Securities, in customary form to such Selling Holders and any Underwriter therefor, cause its officers to execute and deliver all customary documents and certificates requested by any Underwriters of the Registrable Securities, and cause its independent public accountants to provide to such Selling Holders and any Underwriters therefor one or more comfort letters in customary form. The Company may require each Selling Holder to promptly furnish in writing to the Company such information regarding the distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information as may be legally required in connection with such registration including, without limitation, all such information as may be requested by the Commission or the National Association of Securities Dealers, Inc. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth kind described in Section 3.4 3.1(f) hereof;
3.1.10 permit a representative , such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such Selling Holder's receipt of the Holders (such representative to be selected by a majority copies of the participating Holders)supplemented or amended Prospectus contemplated by Section 3.1(f) hereof, the Underwritersand, if any, and any attorney or accountant retained so directed by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior such Selling Holder will deliver to the release or disclosure Company all copies, other than permanent file copies then in such Selling Holder's possession, of any the most recent prospectus covering such information;
3.1.11 obtain a “comfort” letter from Registrable Securities at the Company’s independent registered public accountants in time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of an Underwritten Registration, in customary form days during the period from and covering such matters including the date of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory giving of notice pursuant to a majority-in-interest of the participating Holders;
3.1.12 on Section 3.1(f) hereof to the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing when the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 shall make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning Selling Holders covered by such Registration Statement a Prospectus supplemented or amended to conform with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions requirements of Section 11(a3.1(f) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registrationhereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Headway Corporate Resources Inc)
Filings; Information. Whenever In connection with the registration of Registrable Securities pursuant to Section 2.1, Section 2.2 and Section 2.3 hereof, the Company is required will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of such securities, (ii) with respect to a Shelf Registration, until the earlier of the sale of all Registrable Securities thereunder and the second anniversary of the effective date of such Shelf Registration (it being understood that if at any time all the Registrable Securities then permitted to be sold under such Shelf Registration pursuant to Section 2.3 have been sold but any of the Holders has the right to request a Shelf Registration in the future pursuant to Section 2.3, the Company may (at its option) either cause the registration statement to remain effective (notwithstanding the fact that all securities then registrable on such shelf registration statement shall have been sold) and file post-effective amendments when required to permit the sale of the additional Registrable Securities or prepare and file, and cause to become and remain effective, a new shelf registration statement to effect the registration of the additional Registrable Securities when required pursuant to Section 2.3); provided that if the Company shall furnish to the Selling Holder a certificate signed by the Company's Chairman, President or any Executive Vice-President or Vice-President stating that the Company's Board of Directors has determined in good faith that it would be detrimental or otherwise disadvantageous to the Company or its shareholders for such a registration statement to be filed as expeditiously as possible because the sale of Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file registration statement or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the Commission such amendments and post-effective amendments public disclosure of which at the time would be materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a registration statement for a period of not more than 60 days in any one instance or 120 days in the aggregate in any 360-day period; provided that during any 360-day period the Company shall use its reasonable best efforts to permit a period of at least 180 consecutive days during which the Company will make a registration statement available under this Agreement; and provided further that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statementwould otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financials as of the end of such supplements fiscal year, the Company may delay the effectiveness of such registration statement for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year. If the Company exercises its right to postpone the filing or effectiveness of a registration statement, the applicable Requesting Holders shall be entitled to withdraw their request for such Demand Registration and it shall not count as a Demand Registration.
(b) Anything in this Agreement to the Prospectuscontrary notwithstanding, as may it is understood and agreed that the Company shall not be requested by required to keep any shelf registration effective or useable for offers and sales of the Registrable Securities, file a post effective amendment to a shelf registration statement or prospectus supplement or to supplement or amend any registration statement, if the Company is then involved in discussions concerning, or otherwise engaged in, any material financing or investment, acquisition or divestiture transaction or other material business purpose if the Company determines in good faith that the making of such a filing, supplement or amendment at such time would interfere with such transaction or purpose. The Company shall promptly give the Holders or any Underwriter of Registrable Securities written notice of such postponement containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. Upon receipt by a Holder of Registrable Securities of notice of an event of the kind described in this Section 3.1(b), such Holder shall forthwith discontinue such Holder's disposition of Registrable Securities until such Holder's receipt of notice from the Company that such disposition may continue and of any supplemented or amended prospectus indicated in such notice. No such postponement shall extend for a period of more than 60 days in any one instance or 120 days in the aggregate in any 360-day period; provided, that the Company shall use its reasonable best efforts to permit sales of Registrable Securities on such shelf registration statement for at least 180 days during any 360-day period. In the event the Company shall give notice of an event of the kind described in this Section 3.1(b), the Company shall extend the period during which the applicable registration statement shall be maintained effective as may be required provided in Section 3.1(a) hereof by the rules, regulations or instructions applicable number of days during such period from and including the date of the giving of such notice to the registration form used by date when the Company or by shall give notice to the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Selling Holders that such dispositions of such Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement may continue and shall have made available to the Prospectus;Selling Holders any such supplemented or amended prospectus.
3.1.3 (c) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(d) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (e) The Company will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.1(e), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where jurisdiction.
(f) The Company will as promptly as is practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders will deliver to the Company all copies, other than permanent file copies then in the possession of Selling Holders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.1(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Selling Holders such supplemented or amended prospectus.
(g) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions (including, without limitation, participation in road shows and investor conference calls as the Selling Holders may reasonably request (it is not then otherwise so subject;being understood that such presentations by officers of the Company of 14 days in the aggregate during any 12-month period shall be deemed a reasonable request)) as are required in order to expedite or facilitate the sale of such Registrable Securities.
3.1.5 cause all (h) At the request of any Underwriter in connection with an underwritten offering the Company will furnish (i) an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from the Company's independent public accountants pursuant to Statement of Accounting Standards 72 each in customary form and covering such matters as the managing Underwriter may reasonably request.
(i) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post effective amendment.
(j) The Company shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or Underwriter (collectively, the "INSPECTORS"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "RECORDS"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (j) if (A) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) if either (1) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (A) or (B) such Holder of Registrable Securities requesting such information agrees to enter into a confidentiality agreement in customary form; provided further, however, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give written notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(k) The Company shall cause the Registrable Securities included in any registration statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;, or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify.
3.1.6 (l) The Company shall provide a transfer agent or warrant agent, as applicable, and registrar CUSIP number for all such the Registrable Securities no included in any registration statement not later than the effective date of such Registration Statement;registration statement.
3.1.7 advise (m) The Company shall cooperate with each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of Selling Holder and each Underwriter participating in the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller disposition of such Registrable Securities or its counsel;and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.
3.1.9 notify (n) The Company shall during the Holders at any time period when a Prospectus relating to such Registration Statement the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;Exchange Act.
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the o) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if rules and regulations of the Registration involves Commission thereunder. The Company may require Selling Holders promptly to furnish in writing to the Registration Company such information regarding such Selling Holders, the plan of distribution of the Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of and other information as the Company may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect In connection with the registration of any Registrable Securities pursuant to Section 22.01 and Section 2.02 hereof, the Company shall will use its best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) Subject to Section 2.01(g) hereof, the Company will expeditiously prepare and file with the Commission as soon as practicable (but in any event within 60 days) with the Commission a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective (i) with respect to any Demand Registration (other than a Shelf Registration) or Piggyback Registration, for such period, not to exceed 120 days, as may be reasonably necessary to effect the sale of such securities and (ii) with respect to a Shelf Registration, until the earlier of the sale of all Registrable Securities thereunder and the end of the 36th calendar month from the time the Shelf Registration becomes effective; PROVIDED that if the Company shall furnish to the Selling Holder a certificate signed by the Company's Chairman or President stating that the Board of Directors has determined in good faith that it would be detrimental or otherwise disadvantageous to the Company or its shareholders for such a registration statement to be filed as expeditiously as possible because the sale of Registrable Securities covered by such registration statement or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the public disclosure of which at the time would be materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a registration statement for a period of not more than 180 days; PROVIDED, further, that the Company shall not exercise its right to preempt, delay or postpone any registration pursuant to Section 2.01(e), the first proviso to this Section 3.01(a), or Section 3.01(b) for more than 180 days in the aggregate for all such provisions during any period of 360 consecutive days; PROVIDED, FURTHER, that the Company may exercise its rights under Section 3.01(a) only once with respect to any particular registration statement; and PROVIDED, FURTHER, that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statement have would otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financial statements of the Company as of the end of such fiscal year, the Company may delay the effectiveness of such registration statement for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year.
(b) Anything in this Agreement to the contrary notwithstanding, it is understood and agreed that the Company shall not be required to keep any Shelf Registration effective or useable for offers and sales of the Registrable Securities, file a post effective amendment to a Shelf Registration statement or prospectus supplement or to supplement or amend any registration statement, if the Company is then involved in discussions concerning, or otherwise engaged in, any material financing or investment, acquisition or divestiture transaction or other material business purpose, if the Board of Directors has determined in good faith that the making of such a filing, supplement or amendment at such time would interfere with such transaction or purpose. The Company shall promptly give the Holders of Registrable Securities written notice of such postponement containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. Upon receipt by a Holder of Registrable Securities of notice of an event of the kind described in this Section 3.01(b), such Holder shall forthwith discontinue such Holder's disposition of Registrable Securities until such Holder's receipt of notice from the Company that such disposition may continue and of any supplemented or amended prospectus indicated in such notice. Notwithstanding anything to the contrary contained herein, the Company shall not be entitled to preempt, delay or postpone the filing or effectiveness of any registration statement, pre- or post-effective amendment or supplement to any registration statement or prospectus supplement pursuant to Section 2.01(e), the first proviso of Section 3.01(a), or this Section 3.01(b) for more than 180 days in the aggregate for all such provisions during any period of 360 consecutive days.
(c) Before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to any Selling Holder and to the applicable managing Underwriters, if any, draft copies of all such documents proposed to be filed at least ten (10) business days prior thereto, which documents will be subject to the reasonable review of such Selling Holders, the applicable managing Underwriters, if any, and their respective counsel, agents and representatives, and the Company will not file any registration statement or amendment thereto or any prospectus or any supplement thereto (including such documents incorporated by reference) to which any Selling Holder or Underwriter shall reasonably object.
(d) The Company will notify the Selling Holders requesting such registration and (if requested) confirm such advice in writing, as soon as practicable after notice thereof is received by the Company (i) when the registration statement or any amendment thereto has been sold;filed or becomes effective, the prospectus or any amendment or supplement to the prospectus has been filed, (ii) of any request by the Commission for amendments or supplements to the registration statement or the prospectus or for additional information, (iii) if at any time the representations and warranties contemplated by Section 5.01 cease to be true and correct and (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.
3.1.2 (e) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued, or, to the Company's knowledge, threatened to be issued, by the Commission and use its best efforts to prevent the entry of such stop order or to remove it if entered.
(f) The Company will prepare and file with the Commission such amendments and amendments, post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder necessary to keep the Registration Statement such registration statement effective until for a period of not less than 120 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement are registration statement have been sold or withdrawn, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable), cause the prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended plan methods of distribution disposition by the Selling Holders set forth in such Registration Statement or supplement registration statement.
(g) The Company will furnish to each Selling Holder requesting such registration and the Prospectus;
3.1.3 prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to the Underwritersmanaging Underwriter, if any, and the Holders of Registrable Securities included in such Registrationwithout charge, one signed copy and such Holders’ legal counsel, number of conformed copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to thereto, the prospectus included in such Registration Statement registration statement (in including each case including all exhibits thereto preliminary prospectus) and any amendments or supplements thereto, any documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), therein and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders Selling Holder or such managing Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned (it being understood that the Company consents to the use of the prospectus (including the preliminary prospectus) and any amendment or supplement thereto by the Selling Holder requesting such Holders;
3.1.4 prior to any public registration and the managing Underwriter, if any, in connection with the offering and sale of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement prospectus or any amendment or supplement thereto).
(h) The Company will use its best efforts to qualify the Registrable Securities for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; provided, PROVIDED that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.01(h), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(i) The Company will as promptly as is practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered under the Securities Act, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders will deliver to the Company all copies, other than permanent file copies then otherwise so subject;in the possession of Selling Holders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Selling Holders such supplemented or amended prospectus.
3.1.5 cause all (j) The Company will enter into customary agreements (including an underwriting agreement in customary form, including customary representations, warranties, covenants, conditions and indemnities) and take such other actions as are required or reasonably requested by the Selling Holders or the managing Underwriter in order to expedite or facilitate the sale of such Registrable Securities.
(k) At the request of any Underwriter in connection with an underwritten offering the Company will furnish (i) an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters (and updates thereof) from the Company's independent public accountants covering such customary matters as the managing Underwriter may reasonably request.
(l) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post effective amendment.
(m) The Company shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or Underwriter, all financial and other records, pertinent corporate documents and properties of the Company, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Selling Holder or Underwriter in connection with such registration statement.
(n) The Company shall cause the Registrable Securities included in any registration statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;, or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify.
3.1.6 (o) The Company shall provide a CUSIP number, registrar and transfer agent or warrant agent, as applicable, and registrar for all such the Registrable Securities no included in any registration statement not later than the effective date of such Registration Statement;registration statement.
3.1.7 advise (p) The Company shall cooperate with each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of Selling Holder and each Underwriter participating in the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller disposition of such Registrable Securities or its counsel;and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.
3.1.9 notify (q) The Company shall during the Holders at any time period when a Prospectus relating to such Registration Statement the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;Exchange Act.
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the r) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of s) The Company will use its best efforts to cause all such Registrable Securities involving gross proceeds to be listed on each securities exchange or quoted on each inter-dealer quotation system on which the Common Stock is then listed or quoted. The Company may require Selling Holders promptly to furnish in excess writing to the Company such information regarding such Selling Holders, the plan of $25,000,000, use its reasonable efforts to make available senior executives distribution of the Company to participate in customary “road show” presentations that Registrable Securities and other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (Sandler Capital Management)
Filings; Information. Whenever the Company is required to effect or cause the registration of any Registrable Securities pursuant to Section 22.1 hereof, the Company shall will use its reasonable best efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method(s) of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will prepare and file with the Commission as soon as practicable a Registration Statement with respect to the offer and sale of such Registrable Securities securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until the completion of the distribution contemplated thereby; provided, however, the Company shall not be required to keep such Registration Statement effective for more than 12 months (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold;, but not prior to the expiration of the applicable period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable).
3.1.2 (b) The Company will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, Statement as may be requested by the Holders or any Underwriter of Registrable Securities or necessary to keep such Registration Statements effective for as may be long as such registration is required by the rules, regulations or instructions applicable to remain effective pursuant to the registration form used terms hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and, as so supplemented, to be filed pursuant to Rule 424 under the Company or by Securities Act; and comply with the provisions of the Securities Act or rules and regulations thereunder applicable to keep it with respect to the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold during the applicable period in accordance with the intended plan methods of distribution disposition by the Selling Holders set forth in such Registration Statement or supplement to the Prospectus;.
3.1.3 (c) The Company, at least ten (10) Business Days prior to filing a Registration Statement or prospectus, a Prospectus or any amendment or supplement theretoto such Registration Statement or Prospectus, will furnish without charge to the Underwriters(i) each Selling Holder, (ii) not more than one counsel representing all Selling Holders ("Selling Holders Counsel"), to be selected by a majority-in-interest of such Selling Holders, and (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counselRegistration Statement, copies of such Registration Statement as proposed to be filed, together with exhibits thereto (whether or not incorporated by reference in such Registration Statement), which documents will be subject to review and approval by each of the foregoing within ten (10) Business Days after delivery (except that such review and approval of any Prospectus or any amendment and or supplement to such Registration Statement or Prospectus must be made within five (5) Business Days after delivery), and thereafter, furnish to such Selling Holders, Selling Holders' Counsel and Underwriters, if any, at the Company's expense, such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), ) and such other documents or information as the such Selling Holders, Selling Holders' Counsel or Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned (it being understood that the Company consents to the use of the Prospectus and any amendment or supplement thereto by such Holders;
3.1.4 prior to any public each Selling Holder and the Underwriters, if any, in connection with the offering and sale of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by such Prospectus or any amendment or supplement thereto). The Company shall provide the Registration Statement under such securities or “blue sky” laws Holders' counsel and each Underwriter, if any, a copy of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all transmittal letters or other acts and things that may be necessary correspondence to, or advisable received from, the Commission or any other governmental body having jurisdiction relating to enable the Holders of Registrable Securities included in such Registration Statement offering.
(d) The Company will use its reasonable best efforts to consummate prevent the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance entry of any stop order or to remove it at the earliest possible moment if entered.
(e) [Section Reserved].
(f) The Company will promptly notify each Selling Holder, Selling Holders' Counsel and any Underwriter in writing, (i) of any request by the Commission or other regulatory body having jurisdiction over the Registration Statement for any amendment or supplement to any Registration Statement or other document relating to the offering and sale of the Registrable Securities, (ii) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to a Registration Statement or any post-effective amendment, when the same has become effective, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of such a Registration Statement or the initiation or threatening of any proceeding proceedings for such purpose that purpose, and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as which makes any statements made in a result Registration Statement or related Prospectus or any document incorporated by reference therein untrue in a material respect or which requires the making of which the Prospectus included any changes in such Registration Statement, as then in effect, includes a Misstatement, and then Prospectus or documents so that they will not to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative the best of the Holders (such representative Company's knowledge contain any untrue statement of a material fact or omit to state any material fact required to be selected by a majority stated therein or necessary to make the statements in the Registration Statement and Prospectus not misleading in light of the participating Holders)circumstances in which they were made; and, as promptly as practicable thereafter, prepare and file with the UnderwritersCommission and furnish a supplement or amendment to such Prospectus so that, if anyas thereafter deliverable to the buyers of such Registrable Securities, and such Prospectus will not to the best of the Company's knowledge contain any attorney untrue statements of a material fact or accountant retained by such Holders or Underwriter omit to participate, at each such person’s own expensestate a material fact necessary to make the statements therein, in the preparation light of the Registration Statementcircumstances under which they were made, and cause the Company’s officersnot misleading, directors and employees such amendment to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed subject to the Holders' review under Section 3.1(c). Each Selling Holder agrees that, upon receipt of any notice in writing from the placement agent or sales agentCompany of the happening of any event of the kind described in Section 3.1(f) hereof, if any, and the Underwriters, if any, covering such legal matters with respect Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the Registration in respect of which Statement covering such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take until such customary actions as may reasonably be requested by the Holders, in connection with such Registration.Selling Holder's receipt of
Appears in 1 contract
Samples: Registration Rights Agreement (Compass Knowledge Holdings Inc)
Filings; Information. Whenever the Company MLA is required to effect or cause the registration of any Registrable Securities pursuant to Section 2Article II hereof, the Company shall MLA will use its best reasonable efforts to effect the Registration to permit the sale registration of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) MLA will as expeditiously as possible (and in no event more than forty-five (45) days from the date of receipt of written request from Odyssey pursuant to Section 2.1(a) to register Registrable Securities) prepare and file with the Commission as soon as practicable a Registration Statement registration statement on Form 5-3 (if use of such form is then available to MLA pursuant to the rules of the Commission and, if not, on such other form promulgated by the Commission for which MLA then qualifies and which counsel for MLA shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with respect to the provisions of this Agreement and in accordance with the intended method of disposition of such Registrable Securities Securities), and use its commercially reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable (pursuant to Rule 415 under the Securities covered by such Registration Statement have been sold;
3.1.2 Act or otherwise), and MLA will as expeditiously as possible prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by the Holders necessary to keep such registration statement effective for a period of not less than: (i) twenty four (24) consecutive months, or any Underwriter (ii) with respect to an underwritten offering of Registrable Securities or as may be required by Securities, ninety (90) days after the rules, regulations or instructions applicable to commencement of the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until distribution of all Registrable Securities covered by such Registration Statement are registration statement (or, in each case, for such shorter period as in which all Registrable Securities covered by such registration statement have been sold in accordance with the intended plan method of distribution thereof or in which all Registrable Securities covered by such registration statement and remaining unsold thereunder may be sold in a single transaction or contemporaneous transactions in compliance with Rule 144 under the Securities Act, but in no event before the expiration of the period referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by Odyssey set forth in such Registration Statement or supplement to the Prospectus;registration statement.
3.1.3 (b) MLA will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriters(i) Odyssey, (ii) one firm of counsel representing Odyssey, and (iii) each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counselregistration statement, copies of such Registration Statement registration statement as proposed to be filed, together with all exhibits thereto and all documents incorporated by reference therein, which documents will be subject to review and approval by the foregoing, and thereafter furnish to Odyssey, its counsel and each Underwriter, if any, for theft review and comment, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case case, including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents or information as the Underwriters and the Holders of Registrable Securities included in such Registration Odyssey, its counsel or the legal counsel for any such Holders each Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, MLA will promptly notify odyssey of any stop order issued or threatened by the Commission in connection therewith and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (d) MLA will use its best reasonable efforts to (i) register or qualify the such Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement Odyssey may reasonably (in light of their Odyssey's intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company MLA, and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Odyssey to consummate the disposition of such the Registrable Securities in such jurisdictionsSecurities; provided, PROVIDED that the Company shall MLA will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be (C) consent or subject itself to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such (e) MLA will immediately notify Odyssey upon the occurrence of any of the following events in respect of a registration statement or related prospectus in respect of an offering of Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued Securities: (i) receipt of any request for additional information by the Company are then listed;
3.1.6 provide a transfer agent Commission or warrant agent, as applicable, and registrar any other federal or state governmental authority for all such Registrable Securities no later than amendments or supplements to the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice registration statement or obtain knowledge thereof, of related prospectus; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order by the Commission suspending the effectiveness of such Registration Statement the registration statement or the initiation of any proceedings for that purpose; (iii) receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five purpose; (5iv) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which makes any statement made in the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative registration statement or related prospectus or any document incorporated or deemed to be selected incorporated therein by a majority reference untrue in any material respect or which requires the making of any changes in the participating Holders)registration statement, the Underwriters, if any, and any attorney related prospectus or accountant retained by such Holders or Underwriter to participate, at each such person’s own expenseother documents so that, in the preparation case of the Registration Statementregistration statement, 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 cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters case of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably requestrelated prospectus, and may be found reasonably satisfactory to it will not contain any untrue statement of a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent material fact or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.omit to
Appears in 1 contract
Samples: Registration Rights Agreement (Maple Leaf Aerospace Inc)
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2, 2. the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 : prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 ; prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders Cxxxx, Xxxxxxx or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;
3.1.3 ; prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without charge to Cxxxx, Xxxxxxx, the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, its and such Holders’ their legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as Cxxxx, Xxxxxxx, the Underwriters Underwriters, and the Holders of Registrable Securities included in such Registration or the its and their legal counsel for any such Holders counsel, may request in order to facilitate the disposition of the Registrable Securities owned by Securities; notify Cxxxx and Chardan promptly after the Company receives notice thereof, of the time when such Holders;
3.1.4 Registration Statement (and any amendment thereto) has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed with the Commission and (to the extent relevant) declared effective; prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as Cxxxx and/or Chardan, as the Holders of Registrable Securities included in such Registration Statement case may be (in light of its or their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Cxxxx and/or Chardan to consummate the disposition of such Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 ; cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 ; provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 ; notify Cxxxx and Chardan promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information; advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 ; at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 ; notify the Holders Cxxxx and Chardan at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 3.4 hereof;
3.1.10 ; permit a representative of the Holders (such representative to be selected by a majority of the participating Holders)Cxxxx, Xxxxxxx, the Underwriters, if any, and any attorney or accountant retained by such Holders Cxxxx, Xxxxxxx or Underwriter the Underwriters to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
Appears in 1 contract
Samples: Settlement Agreement (Kaleyra, Inc.)
Filings; Information. Whenever Buyer requests that any Registrable Securities be registered pursuant to Section 2.01 hereof, the Company is required will use its reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as possible prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan method of distribution set forth thereof, and use its reasonable efforts to cause such filed registration statement to become and remain effective for a period of not less than 120 days; provided that if, once in such Registration Statement any 12-month period, the Company shall furnish to Buyer a certificate signed by the Company’s Chairman, President or supplement any Vice-President stating that in his good faith judgment it would be detrimental or otherwise disadvantageous to the Prospectus;Company or its shareholders for such a registration statement to be filed as expeditiously as possible, the Company shall have a period of not more than 60 days within which to file such registration statement measured from the date of the Company’s receipt of Buyer’s request for registration in accordance with Section 2.01.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersBuyer and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to Buyer and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and prospectus) as Buyer or each such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Securities.
(c) After the filing of the registration statement, the Company will promptly notify Buyer of any stop order issued or, to the Company’s knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior (d) The Company will endeavor to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictionsBuyer reasonably requests; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.01(d), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Company will as promptly as is not then otherwise so subject;
3.1.5 cause all such practicable notify Buyer, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be listed on each securities exchange delivered in connection with sales by an Underwriter or automated quotation system on which similar securities issued by dealer, of the Company are then listed;
3.1.6 provide occurrence of any event requiring the preparation of a transfer agent supplement or warrant agentamendment to such prospectus so that, as applicable, and registrar for all such Registrable Securities no later than thereafter delivered to the effective date of such Registration Statement;
3.1.7 advise each seller purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly after it shall receive make available to Buyer and to the Underwriters any such supplement or amendment. Buyer agrees that, upon receipt of any notice from the Company of the occurrence of any event of the kind described in the preceding sentence, Buyer will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by Buyer and the Underwriters of the copies of such supplemented or obtain knowledge thereofamended prospectus and, if so directed by the Company, Buyer will deliver to the Company all copies, other than permanent file copies then in Buyer’s possession, of the issuance most recent prospectus covering such Registrable Securities at the time of any stop order receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.01(a) hereof by the Commission suspending number of days during the effectiveness period from and including the date of the giving of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior notice to the filing of any Registration Statement date when the Company shall make available to Buyer such supplemented or Prospectus amended prospectus.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller facilitate the sale of such Registrable Securities Securities.
(g) The Company will furnish to Buyer and to each Underwriter a signed counterpart, addressed to Buyer or its counsel;
3.1.9 notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities ActUnderwriter, of the happening (i) an opinion or opinions of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory counsel to the Company, prior to the release Company and (ii) a comfort letter or disclosure of any such information;
3.1.11 obtain a “comfort” letter comfort letters from the Company’s independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as Buyer or the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;requests.
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the (h) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder the rules and regulations of the Commission thereunder.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, i) The Company will use its reasonable efforts to make available senior executives cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed.
(j) The Company will have appropriate officers of the Company to participate in customary (i) attend any “road showshows” and analyst and investor presentations that may be scheduled in connection with any such registration, (ii) take other actions to obtain ratings for any Registrable Securities, and (iii) use its reasonable best efforts to cooperate as reasonably requested by the Underwriter Buyer in any Underwritten Offering; and
3.1.16 otherwisethe marketing of the Registrable Securities. The Company may require Buyer promptly (i) to furnish in writing to the Company such information regarding Buyer, in good faith, cooperate the plan of distribution of the Registrable Securities and other information as the Company may from time to time reasonably with, and take such customary actions request or as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration and (ii) to enter into such agreements (including, in the case of an underwritten offering, customary underwriting agreements) as the Company may from time to time reasonably request or as may be legally required in connection with such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Banco Santander Central Hispano Sa)
Filings; Information. Whenever In connection with the registration of Registrable Securities pursuant to Section 2.1, Section 2.2 and Section 2.3 hereof, the Company is required will use its reasonable best efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously promptly as is reasonably practicable, and in connection with any such request:
3.1.1 (a) The Company will expeditiously prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which counsel for the Company shall deem appropriate and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of such securities, (ii) with respect to a Shelf Registration, until the earlier of the sale of all Registrable Securities thereunder and the fifth anniversary of the Closing Date (or if such Shelf Registration is filed or amended on or after the fourth anniversary of the Closing Date, then the earlier of the sale of all Registrable Securities thereunder and the second anniversary of the effective date of such Shelf Registration) (it being understood that if at any time all the Registrable Securities then permitted to be sold under such Shelf Registration pursuant to Section 2.3 have been sold but the Holders have the right to request the addition of additional Registrable Securities to the Shelf Registration in the future pursuant to Section 2.3, the Company may (at its option) either cause the registration statement to remain effective (notwithstanding the fact that all securities then registrable on such shelf registration statement shall have been sold) and file post-effective amendments when required to permit the sale of the additional Registrable Securities or prepare and file, and cause to become and remain effective, a new shelf registration statement to effect the registration of the additional Registrable Securities when required pursuant to Section 2.3); provided that if the Company shall furnish to the Selling Holder a certificate signed by the Company's Chairman, President or any Executive Vice-President or Vice-President stating that the Company's Board of Directors has determined in good faith that it would be detrimental or otherwise disadvantageous to the Company or its stockholders for such a registration statement to be filed as expeditiously as possible because the sale of Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the Commission such amendments and post-effective amendments public disclosure of which at the time would be materially prejudicial to the Company, the Company may postpone the filing or effectiveness of a registration statement for a period of not more than 120 days; provided that during any 360-day period the Company shall use its reasonable best efforts to permit a period of at least 180 consecutive days during which the Company will make a registration statement available under this Agreement; and provided further that if (i) the effective date of any registration statement filed pursuant to a Demand Registration Statementwould otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financials as of the end of such supplements fiscal year, the Company may delay the effectiveness of such registration statement for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year. If the Company exercises its right to postpone the filing or effectiveness of a registration statement, the applicable Requesting Holders shall be entitled to withdraw their request for such Demand Registration and it shall not count as a Demand Registration.
(b) Anything in this Agreement to the Prospectuscontrary notwithstanding, as may it is understood and agreed that the Company shall not be requested by required to keep any shelf registration effective or useable for offers and sales of the Registrable Securities, file a post effective amendment to a shelf registration statement or prospectus supplement or to supplement or amend any registration statement, if the Company is then involved in discussions concerning, or otherwise engaged in, any material financing or investment, acquisition or divestiture transaction or other material business purpose if the Company determines in good faith that the making of such a filing, supplement or amendment at such time would interfere with such transaction or purpose. The Company shall promptly give the Holders or any Underwriter of Registrable Securities written notice of such postponement containing a general statement of the reasons for such postponement and an approximation of the anticipated delay. Upon receipt by a Holder of Registrable Securities of notice of an event of the kind described in this Section 3.1(b), such Holder shall forthwith discontinue such Holder's disposition of Registrable Securities until such Holder's receipt of notice from the Company that such disposition may continue and of any supplemented or amended prospectus indicated in such notice. The Company shall use its reasonable best efforts to permit sales of Registrable Securities on such shelf registration statement for at least 180 days during any 360-day period. In the event the Company shall give notice of an event of the kind described in this Section 3.1(b), the Company shall extend the period during which the applicable registration statement shall be maintained effective as may be required provided in Section 3.1(a) hereof by the rules, regulations or instructions applicable number of days during the period from and including the date of the giving of such notice to the registration form used by date when the Company or by shall give notice to the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Selling Holders that such dispositions of such Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement may continue and shall have made available to the Prospectus;Selling Holders any such supplemented or amended prospectus.
3.1.3 (c) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by the Selling Holders.
(d) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued or, to the Company's knowledge, threatened to be issued by the Commission and take all reasonable actions required to prevent the entry of such Holders;stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (e) The Company will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of such the Registrable Securities owned by such Selling Holder in such jurisdictions; provided, provided that the Company shall will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph 3.1(e), (ii) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(f) The Company will as promptly as is practicable notify the Selling Holders, at any time when a prospectus relating to the sale of the Registrable Securities is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an 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 were made, not misleading and promptly make available to the Selling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, Selling Holders will forthwith discontinue the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders will deliver to the Company all copies, other than permanent file copies then otherwise so subject;in the possession of Selling Holders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 3.1(a) hereof by the number of days during the period from and including the date of the giving of such notice to the date when the Company shall make available to the Selling Holders such supplemented or amended prospectus.
3.1.5 cause all (g) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions (including, without limitation, participation in road shows and investor conference calls) as are required in order to expedite or facilitate the sale of such Registrable Securities.
(h) At the request of any Underwriter in connection with an underwritten offering the Company will furnish (i) an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from the Company's independent public accountants covering such customary matters as the managing Underwriter may reasonably request.
(i) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Securities being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post effective amendment.
(j) The Company shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to any registration statement, and any attorney, accountant or other agent or representative retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate ---------- documents and properties of the Company (collectively, the "Records"), as shall ------- be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information requested by any such Inspector in connection with such registration statement; provided, however, that unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, the Company shall not be required to provide any information under this subparagraph (j) if (A) the Company believes, after consultation with counsel for the Company, that to do so would cause the Company to forfeit an attorney-client privilege that was applicable to such information or (B) if either (1) the Company has requested and been granted from the Commission confidential treatment of such information contained in any filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing unless prior to furnishing any such information with respect to (A) or (B) such Holder of Registrable Securities requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; provided further, however, that each Holder of Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(k) The Company shall cause the Registrable Securities included in any registration statement to be (A) listed on each securities exchange or automated quotation system exchange, if any, on which similar securities issued by the Company are then listed;, or (B) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify.
3.1.6 (l) The Company shall provide a transfer agent or warrant agent, as applicable, and registrar CUSIP number for all such the Registrable Securities no included in any registration statement not later than the effective date of such Registration Statement;registration statement.
3.1.7 advise (m) The Company shall cooperate with each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of Selling Holder and each Underwriter participating in the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller disposition of such Registrable Securities or its counsel;and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.
3.1.9 notify (n) The Company shall during the Holders at any time period when a Prospectus relating to such Registration Statement the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;Exchange Act.
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the o) The Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 will make generally available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if rules and regulations of the Registration involves Commission thereunder. The Company may require Selling Holders promptly to furnish in writing to the Registration Company such information regarding such Selling Holders, the plan of distribution of the Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of and other information as the Company may from time to participate in customary “road show” presentations that time reasonably request or as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
Appears in 1 contract
Samples: Registration Rights Agreement (Liberty Media Corp /De/)
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities are to be registered pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such requestthis Agreement:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;(a) [Reserved.]
3.1.2 (b) The Company will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such Registration Statement and the Prospectus, prospectus used in connection therewith as may be requested by necessary to keep such Registration Statement effective and to comply with the Holders or any Underwriter provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan method of distribution set forth in such Registration Statement or supplement to the Prospectus;distribution.
3.1.3 (c) The Company will, prior to filing a Registration Statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, Holders and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, their counsel copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review and approval, which approval shall not be unreasonably withheld or delayed, by the foregoing at least fifteen (15) days before the anticipated date of filing of the Registration Statement or prospectus or at least five (5) days before the anticipated date of filing of any amendments or supplements thereto, and thereafter furnish to the Holders and their counsel such number of copies of such Registration Statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Holders.
(d) After the filing of the Registration Statement, the Company will promptly notify the Holders covered by such Holders;Registration Statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (e) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States and such other jurisdictions as the Holders of Registrable Securities included in such Registration Statement any Holder reasonably (in light of their such Holder’s intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and such Holder’s intended plan of distribution and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictions; provided, that Holder.
(f) The Company will immediately notify the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Holders of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, such prospectus will not contain an 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 cause will promptly make available to the Company’s officers, directors and employees to supply all information reasonably requested by Holders any such representative, Underwriter, attorney supplement or accountant in connection with the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;amendment.
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the (g) The Company for the purposes of such Registration, addressed will deliver promptly to the Holders, subject to restrictions imposed by the placement agent United States federal government or sales agentany agency or instrumentality thereof, if any, copies of all correspondence between the Commission and the Underwriters, if any, covering such legal matters Company and its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the Registration in respect of which such opinion is being given as Statement. The Company will make available to the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest Holders appropriate officers of the participating Holders;
3.1.13 Company to answer any questions that the Holders may have with respect to the contents of the Registration Statement to the extent reasonably necessary to conduct reasonable due diligence on the Company and the matters addressed in the event Registration Statement.
(h) The Company will use its best efforts to comply with all applicable rules and regulations of any Underwritten Offering, enter into the Commission and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement Statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(i) The Company will use its best efforts to cause all Registrable Securities to be listed on The Nasdaq Global Select Market or any successor rule promulgated thereafter by thereof.
(j) The Company may require the Commission);
3.1.15 if Holders to promptly furnish in writing to the Registration involves Company such information regarding the Registration distribution of the Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
(k) Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(f) 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 3.1(f) hereof, and, if so directed by the Company such Holder will deliver to the Company all copies, other than permanent file copies then in such Holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such Registration Statement shall be maintained effective (including the period referred to in Section 3.1(b) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(f) hereof to the date when the Company shall make available to the Holders covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 3.1(f) hereof.
(l) The Company will furnish, at the request of any Holder requesting registration of Registrable Securities pursuant to Article 2, on the date or dates provided for in the underwriting agreement if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, covering such matters as such counsel, underwriters and the Holders may reasonably agree upon (including such matters as are customarily given to underwriters in an underwritten public offering), addressed to the underwriters, if any, and (ii) a letter or letters dated as of such date, from the independent certified public accountants of the Company, addressed to the underwriters, if any, covering such matters as such accountants, underwriters and Holders may reasonably agree upon.
Appears in 1 contract
Filings; Information. Whenever the Holders have requested that any Registrable Securities be registered pursuant to this agreement, the Company is required will use its reasonable efforts to effect the registration of any Registrable Securities pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will as expeditiously as practicable prepare and file with the Commission as soon as practicable a Registration Statement with respect to such registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof (it being understood that the Company shall use Form S-3 (or any replacement form) if such form is then available), and use its commercially reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;effective.
3.1.2 (b) The Company will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by necessary to keep such registration statement effective and to comply with the Holders or any Underwriter provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold registration statement until such time as all of such securities have been disposed of in accordance with the intended plan methods of distribution disposition by the Selling Holder or Selling Holders thereof set forth in such Registration Statement or supplement to the Prospectus;registration statement.
3.1.3 (c) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder, counsel representing any Selling Holders, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the foregoing within 5 Business Days after delivery, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior (d) After the filing of the registration statement, the Company will promptly notify each Selling Holder covered by such registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to any public offering prevent the entry of Registrable Securities, such stop order or to remove it if entered.
(e) The Company will use its best commercially reasonable efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States and such other jurisdictions as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (f) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a Misstatementmaterial fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and then will promptly make available to correct each Selling Holder any such Misstatement supplement or amendment.
(g) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as set forth are reasonably required in Section 3.4 hereof;
3.1.10 permit a representative order to expedite or facilitate the disposition of such Registrable Securities in accordance with the intended plan of distribution of the Holders Selling Holders.
(h) The Company will deliver promptly to each Selling Holder of such representative to be selected by a majority of the participating Holders), the UnderwritersRegistrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the Commission and the Company and its counsel or auditors and all memoranda relating to discussions with the Commission or its staff with respect to the registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe "Inspectors"), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the "Records"), as shall be reasonably necessary to enable them to perform a reasonable and customary due diligence investigation, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementCompany determines, in form good faith, to be confidential and substance reasonably satisfactory which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the Companydisclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; provided that prior to any disclosure or release pursuant to clause (ii), the release or disclosure Inspectors shall provide the Company with prompt notice of any such information;request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and provided, further, that if failing the entry of a protective order or the waiver by the Company permitting the disclosure or release of such Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
3.1.11 obtain (i) The Company will furnish to each Underwriter, if any, (i) an opinion or opinions of counsel to the Company and (ii) a “comfort” comfort letter or comfort letters from the Company’s 's independent registered public accountants in the event of an Underwritten Registrationaccountants, each in customary form and covering such matters of the type customarily covered by “comfort” letters opinions or comfort letters, as the case may be, as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agentUnderwriter, if any, therefor reasonably requests.
(j) The Company will use its commercially reasonable efforts to comply with all applicable rules and regulations of the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance lettersCommission, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder thereunder.
(or any successor rule promulgated thereafter k) The Company will use its commercially reasonable efforts (a) to cause all such Registrable Securities to be listed on a national securities exchange (if such shares are not already so listed) and on each additional national securities exchange on which similar securities issued by the CommissionCompany are then listed (if any);
3.1.15 , if the Registration involves listing of such Registrable Securities is then permitted under the Registration rules of such exchange or (b) to secure designation of all such Registrable Securities covered by such registration statement as a NASDAQ "national market system security" within the meaning of Rule 11Aa2-1 of the Commission or, failing that, to secure NASDAQ authorization for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD.
(l) The Company will appoint a transfer agent and registrar for all such Registrable Securities covered by such registration statement not later than the effective date of such registration statement. The Company may require each Selling Holder of Registrable Securities involving gross proceeds to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives the Company such information regarding the distribution of the Registrable Securities as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(f) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the Company such Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(f) hereof to the date when the Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 3.1(f) hereof.
Appears in 1 contract
Samples: Management Stockholders Agreement (Communications & Power Industries Inc)
Filings; Information. Whenever the Company is required to effect In connection with the registration of any Registrable Securities Shares pursuant to Section 2, the Company shall use its best efforts to effect the Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such request2.1:
3.1.1 (a) The Company will prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or registration statement on any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by for that the Company or by then qualifies and which counsel for the Securities Act or rules Company shall deem appropriate and regulations available for the sale of the Registrable Shares to be registered thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended method of distribution thereof, as may be reasonably necessary to effect the sale of such securities, the Company may require Selling Holders to promptly furnish in writing to the Company such information regarding such Selling Holders, the plan of distribution set forth of the Registrable Shares and other information as the Company may be legally required to disclose in connection with such Registration Statement or supplement to the Prospectus;registration.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement or prospectus, such registration statement or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holders, and each applicable managing Underwriter, if any, and the Holders of Registrable Securities included in such Registrationcopies thereof, and thereafter furnish to the Selling Holders and each such Holders’ legal counselUnderwriter, if any, such number of copies of such Registration Statement as proposed to be filedregistration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), and such other documents prospectus) as the Underwriters and the Selling Holders of Registrable Securities included in or each such Registration or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned Shares by such the Selling Holders;.
3.1.4 prior (c) After the filing of the registration statement, the Company will promptly notify the Selling Holders of any stop order issued or, to any public offering of Registrable Securitiesthe Company’s knowledge, threatened to be issued by the Commission and use its best commercially reasonable efforts to prevent the entry of such stop order or to remove it if entered.
(id) register or In addition to the requirements imposed on the Company elsewhere herein, the Company will qualify the Registrable Securities covered by the Registration Statement Shares for offer and sale under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Selling Holders of Registrable Securities included may reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such Registration Statement (in light of their intended plan of distribution) may request, and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement registration statement is required to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company kept effective; and do any and all other acts and things that which may be necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement each Selling Holder to consummate the disposition of the Registrable Shares owned by such Registrable Securities Selling Holder in such jurisdictions; provided, provided that the Company shall will not be required to (i) qualify to generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3.1(d), (ii) subject itself to taxation in any such jurisdiction, or take any action to which it would be subject (iii) consent to general service of process or taxation in any such jurisdiction where it jurisdiction.
(e) The Company will as promptly as is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 practicable notify the Holders Selling Holders, at any time when a Prospectus prospectus relating to the sale of the Registrable Shares is required by law to be delivered in connection with sales by an Underwriter or dealer, of the occurrence of any event requiring the preparation of a supplement or amendment to such Registration Statement is prospectus so that, as thereafter delivered to the purchasers of such Registrable Shares, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be delivered stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and promptly make available to the Securities ActSelling Holders and to the Underwriters any such supplement or amendment. Upon receipt of any notice of the occurrence of any event of the kind described in the preceding sentence, the Selling Holders will forthwith discontinue the offer and sale of Registrable Shares pursuant to the registration statement covering such Registrable Shares until receipt by the Selling Holders and the Underwriters of the copies of such supplemented or amended prospectus and, if so directed by the Company, the Selling Holders shall deliver to the Company all copies, other than permanent file copies then in the possession of the Selling Holders, of the happening most recent prospectus covering such Registrable Shares at the time of receipt of such notice. Furthermore, in the event the Company shall give such notice, the Company shall, as promptly as is practical, prepare 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, and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares being sold thereunder, such prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions (including, without limitation, participation in road shows and investor conference calls) as are required in order to expedite or facilitate the sale of such Registrable Shares.
(g) At the request of any event Underwriter in connection with an underwritten offering, the Company will furnish (i) an opinion of counsel, addressed to the Underwriters and the Selling Holders, covering such customary matters as the managing Underwriter and the Selling Holders may reasonably request and (ii) a result comfort letter or comfort letters from the Company’s independent public accountants addressed to the Underwriters and the Selling Holders covering such customary matters as the managing Underwriter or the Selling Holders may reasonably request.
(h) If requested by the managing Underwriter or any Selling Holder, the Company shall promptly incorporate in a prospectus supplement or post effective amendment such information as the managing Underwriter or any Selling Holder reasonably requests to be included therein, including without limitation, with respect to the Registrable Shares being sold by such Selling Holder, the purchase price being paid therefor by the Underwriters and with respect to any other terms of which the Prospectus included underwritten offering of the Registrable Shares to be sold in such Registration Statement, as then in effect, includes a Misstatementoffering, and then promptly make all required filings of such prospectus supplement or post effective amendment.
(i) The Company shall promptly make available for inspection by any Selling Holder or Underwriter participating in any disposition pursuant to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if anyany registration statement, and any attorney attorney, accountant or accountant other agent or representative retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe “Inspectors”), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the “Records”), as shall reasonably be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspector in connection with the Registrationsuch registration statement; provided, however, that unless the disclosure of such representatives Records is necessary to avoid or Underwriters enter into correct a confidentiality agreementmisstatement or omission in the registration statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, in form and substance reasonably satisfactory the Company shall not be required to provide any information under this subparagraph (i) if (A) the Company believes, after consultation with counsel for the Company, prior that to do so would cause the release Company to forfeit an attorney-client privilege that was applicable to such information or disclosure of any such information;
3.1.11 obtain a “comfort” letter (B) if the Company has requested and been granted from the Company’s independent registered public accountants Commission confidential treatment of such information contained in any filing with the event of an Underwritten RegistrationCommission or documents provided supplementally or otherwise.
(j) The Company shall cause the Common Shares included in any registration statement to be listed on each securities exchange on which securities issued by the Company are then listed, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date if the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Shares so qualify.
(k) The Company shall provide a CUSIP number for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily Registrable Shares included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings registration statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after not later than the effective date of such registration statement.
(l) The Company shall cooperate with each Selling Holder and each Underwriter participating in the Registration Statement which satisfies disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the provisions Financial Industry Regulatory Authority (“FINRA”).
(m) The Company shall participate in any financial roadshow organized for purposes of publicizing the sale or other disposition of the Registrable Shares. Such participation shall include, but not be limited to, dispatch by the Company of personnel to assist in each presentation made during the roadshow, and provision of the Company data needed for purposes of the roadshow.
(n) The Company shall, during the period when the prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Section 11(a13(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such RegistrationExchange Act.
Appears in 1 contract
Samples: Registration Rights Agreement (Hersha Hospitality Trust)
Filings; Information. Whenever the Company is required to effect the registration of any Registrable Securities are to be registered pursuant to this Agreement:
(a) The Company will as expeditiously as possible in accordance with Section 22.1(a) (i) prepare and file with the Commission a registration statement on (i) Form S-3 with respect to the Mandatory Registration or (ii) if Form S-3 is not available, any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution reasonably acceptably to the Holder and the Company (provided such distribution shall not consist of an underwritten public offering), and the Company shall use its best efforts to effect the Registration cause such filed registration statement to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 prepare and file with the Commission become effective as soon as practicable a Registration Statement in accordance with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;this Agreement.
3.1.2 (b) The Company will prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to such registration statement and the Prospectus, prospectus used in connection therewith as may be requested by necessary to keep such registration statement effective and to comply with the Holders or any Underwriter provisions of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder with respect to keep the Registration Statement effective until disposition of all Registrable Securities securities covered by such Registration Statement are sold registration statement in accordance with the intended plan method of distribution set forth in such Registration Statement or supplement to accordance with Section 3.1(a) until the Prospectus;Termination Date.
3.1.3 (c) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, Holder and the Holders of Registrable Securities included in such Registration, and such Holders’ legal counsel, its counsel copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to review by the foregoing within three (3) Business Days after delivery, and thereafter furnish to the Holder and its counsel such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for any such Holders Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Holder.
(d) After the filing of the registration statement, the Company will promptly notify the Holder covered by such Holders;registration statement of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
3.1.4 prior to any public offering of Registrable Securities, (e) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States and such other jurisdictions (including in Canada) as the Holders of Registrable Securities included in such Registration Statement Holder reasonably (in light of their the Holder’s intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States and Canada as may be necessary by virtue of the business and operations of the Company and the Holder’s intended plan of distribution and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Holder to consummate the disposition of such the Registrable Securities in such jurisdictions; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued owned by the Holder.
(f) The Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than will immediately notify the effective date of such Registration Statement;
3.1.7 advise each seller Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, such prospectus will not contain an 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 cause will promptly make available to the Company’s officers, directors and employees to supply all information reasonably requested by Holder any such representativesupplement or amendment.
(g) The Company will deliver promptly to the Holder, Underwritersubject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, attorney copies of all correspondence between the Commission and the Company and its counsel or accountant in connection auditors and all memoranda relating to discussions with the Registration; provided, that such representatives Commission or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably request, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters its staff with respect to the Registration registration statement. The Company will make available to the Holder appropriate officers of the Company to answer any questions that the Holder may have with respect to the contents of the registration statement to the extent reasonably necessary to conduct reasonable due diligence on the Company and the matters addressed in respect the registration statement.
(h) The Company will use its best efforts to comply with all applicable rules and regulations of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request Commission and as are customarily included under all applicable securities laws in such opinions Canada and negative assurance lettersthe rules and regulations of all securities regulatory authorities in Canada and, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holderssecurityholders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder and laws and rules of similar effect in Canada.
(or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of i) The Company will use its best efforts to cause all Registrable Securities involving gross proceeds to be listed on the NASDAQ National Market or, upon, The Nasdaq Stock Market, Inc.’s registration as a national securities exchange, the NASDAQ Global Market (which will be the successor to the NASDAQ National Market).
(j) The Company may require the Holder to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives the Company such information regarding the distribution of the Registrable Securities as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
(k) The Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(g) hereof, the Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until the Holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(g) hereof, and, if so directed by the Company the Holder will deliver to the Company all copies, other than permanent file copies then in the Holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 3.1(b) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(g) hereof to the date when the Company shall make available to the Holder covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 3.1(g) hereof.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect the registration of any Holder requests that -------------------- any Registrable Securities be registered pursuant to Section 2Sections 2.1, the Company shall will use its best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will, subject to Section 2.1(d), as expeditiously as possible prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by the earlier of (i) 90 days from the date such Registration Statement have been sold;
3.1.2 prepare and file with registration statement became effective or (ii) the Commission such amendments and post-effective amendments to date on which the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter sale of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by has been completed. If the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold receives multiple demands for registration in accordance with this Agreement, then, except as provided in Section 2.1(a), such demands shall be handled in the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;order received.
3.1.3 (b) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder, one counsel representing all such Selling Holders, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counsel, registration statement copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to prompt review and approval by the foregoing, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the registration statement, the Company will promptly notify each Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) -------- qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on (e) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a Misstatement, and then material fact or omit to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative state any material fact required to be selected by a majority stated therein or necessary to make the statements therein not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(f) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the participating Holders), the Underwriterssuch Registrable Securities.
(g) The Company will deliver promptly to each Selling Holder of such Registrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe "Inspectors"), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the "Records"), subject to restrictions imposed by any governmental authority governing access to classified information, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; providedprovided that prior to any disclosure or release -------- pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and provided further, that if failing the entry of a ---------------- protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory fiduciary obligation to the Company, prior ) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such is made generally available to the release or public. Each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of any such information;
3.1.11 obtain Records is sought in a “comfort” letter from court of competent jurisdiction, give notice to the Company and allow the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters at its expense, to undertake appropriate action to prevent disclosure of the type customarily covered by “comfort” letters as Records deemed confidential.
(h) The Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the managing Underwriter may reasonably requestSEC, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
3.1.15 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
Appears in 1 contract
Samples: Stockholders Agreement (Laralev Inc)
Filings; Information. Whenever (a) The Company will prepare and file with the Company is required to effect SEC the registration Registration Statement covering sales of any the Registrable Securities pursuant to Section 2, by the Company Holder on a form which shall use its best efforts to effect the Registration to permit be appropriate for the sale of such the Registrable Securities to be registered thereunder in accordance with the intended plan method of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and shall use its reasonable best efforts to cause such Registration Statement to become be declared effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;
3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter of Registrable Securities or SEC as may be required by the rules, regulations or instructions applicable to the registration form used by the soon as practicable after filing. The Company or by the Securities Act or rules and regulations thereunder to shall furthermore keep the such Registration Statement effective until all the shares covered thereby are no longer Registrable Securities covered by such Registration Statement are sold and shall comply in accordance all material respects with the intended plan applicable requirements of distribution set forth in such Registration Statement or supplement to the Prospectus;Securities Exchange Act of 1934, as amended, including, but not limited to, timely filing of all reports with the SEC as required thereunder.
3.1.3 (b) The Company will, if requested, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the UnderwritersSelling Holder and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counselregistration statement, copies of such Registration Statement registration statement as proposed to be filed, and thereafter the Company will furnish to such Selling Holder and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the Registration Statement, the Company will promptly notify the Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (B) subject itself to taxation in any such jurisdiction, or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;jurisdiction.
3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by (e) The Company will immediately notify the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative to be selected by a majority of the participating Holders), the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the Registration Statementpurchasers of such Registrable Securities, such prospectus will not contain an 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 promptly make available to the Selling Holder any such supplement or amendment.
(f) The Company and the Selling Holder will enter into customary agreements and take such other actions as are reas6nably required in order to expedite or facilitate the disposition of such Registrable Securities.
(g) The Company will make available for inspection by any Selling Holder, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees of the Company to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the Registration; provided, that such representatives or Underwriters enter into a confidentiality agreementCompany determines, in form good faith, to be confidential and substance reasonably satisfactory which it, in writing, notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. The Selling Holder of such Registrable Securities agrees that information designated by the Company as confidential and 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 Company or its affiliates unless and until such is made generally available to the public. The Selling Holder of such Registrable Securities further agrees that it will, upon learning that the disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, prior at its expense, to the release or undertake appropriate action to prevent disclosure of any such information;the Records deemed confidential.
3.1.11 obtain a “comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form (h) The Company will otherwise use its best efforts to comply with ail applicable rules and covering such matters regulations of the type customarily covered by “comfort” letters as the managing Underwriter may reasonably requestSEC, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) months, beginning within three (3) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder Act.
(i) The Company will use its best efforts to cause all Registrable Securities to be listed for trading on each securities exchange or any successor rule promulgated thereafter other securities market on which similar securities issued by the Commission);Company are then listed.
3.1.15 if (j) The Company may require the Registration involves the Registration Selling Holder of Registrable Securities involving gross proceeds to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives the Company such information regarding the distribution of the Registrable Securities as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
(k) The Selling Holder shall, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(e) hereof, forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof, and, if so directed by the Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when the Company shall make available to the Selling Holder of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 3.1(e) hereof.
Appears in 1 contract
Filings; Information. Whenever the Company is required to effect the registration of any Holder requests that any -------------------- Registrable Securities be registered pursuant to Section 22.1, the Company shall will use its commercially reasonable best efforts to effect the Registration to permit registration and the sale of such Registrable Securities in accordance with the intended plan method of distribution disposition thereof as expeditiously quickly as practicable, and in connection with any such request:
3.1.1 (a) The Company will, subject to Section 2.1(d), as expeditiously as possible prepare and file with the Commission as soon as practicable SEC a Registration Statement with respect to such registration statement on any form for which the Company then qualifies and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method of distribution thereof, and use its commercially reasonable best efforts to cause such Registration Statement filed registration statement to become effective and remain effective until all Registrable Securities covered by the earlier of (i) 90 days from the date such Registration Statement have been sold;
3.1.2 prepare and file with registration statement became effective or (ii) the Commission such amendments and post-effective amendments to date on which the Registration Statement, and such supplements to the Prospectus, as may be requested by the Holders or any Underwriter sale of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by has been completed. If the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold receives multiple demands for registration in accordance with this Agreement, then, except as provided in Section 2.1(a), such demands shall be handled in the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;order received.
3.1.3 (b) The Company will, prior to filing a Registration Statement registration statement or prospectus, prospectus or any amendment or supplement thereto, furnish without charge to the Underwriterseach Selling Holder, one counsel representing all such Selling Holders, and each Underwriter, if any, and of the Holders of Registrable Securities included in covered by such Registration, and such Holders’ legal counselregistration statement, copies of such Registration Statement registration statement as proposed to be filed, together with exhibits thereto, which documents will be subject to prompt review and approval by the foregoing, and thereafter furnish to such Selling Holder, counsel and Underwriter, if any, such number of copies of such registration statement, each amendment and supplement to such Registration Statement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus prospectus included in such Registration Statement registration statement (including each preliminary Prospectus), prospectus) and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration Selling Holder or the legal counsel for any such Holders Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holders;Selling Holder.
3.1.4 prior to any public offering (c) After the filing of the registration statement, the Company will promptly notify each Selling Holder of Registrable Securities, Securities covered by such registration statement of any stop order issued or threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use its commercially reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such other securities or “blue sky” sky laws of such jurisdictions in the United States as the Holders of Registrable Securities included in such Registration Statement any Selling Holder reasonably (in light of their such Selling Holder's intended plan of distribution) may request, requests and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement Selling Holder to consummate the disposition of such the Registrable Securities in owned by such jurisdictionsSelling Holder; provided, provided that the Company shall will not be required to (A) qualify generally to do -------- business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (d), (B) subject itself to taxation in any such jurisdiction or take any action to which it would be subject (C) consent to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;(other than special service of process).
3.1.5 cause all such Registrable Securities to be listed on (e) The Company will immediately notify each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
3.1.7 advise each seller Selling Holder of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
3.1.8 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus or any document that is to be incorporated by reference into such Registration Statement or Prospectus, furnish a copy thereof to each seller of such Registrable Securities or its counsel;
3.1.9 notify the Holders at any time when a Prospectus prospectus relating to such Registration Statement thereto is required to be delivered under the Securities Act, of the happening occurrence of any an event as requiring the preparation of a result of which the Prospectus included in supplement or amendment to such Registration Statementprospectus so that, as then in effectthereafter delivered to the purchasers of such Registrable Securities, includes such prospectus will not contain an untrue statement of a Misstatement, and then material fact or omit to correct such Misstatement as set forth in Section 3.4 hereof;
3.1.10 permit a representative of the Holders (such representative state any material fact required to be selected by a majority stated therein or necessary to make the statements therein not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(f) The Company will enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of the participating Holders), the Underwriterssuch Registrable Securities.
(g) The Company will deliver promptly to each Selling Holder of such Registrable Securities and each Underwriter, if any, subject to restrictions imposed by the United States federal government or any agency or instrumentality thereof, copies of all correspondence between the SEC and the Company, its counsel or auditors and all memoranda relating to discussions with the SEC or its staff with respect to the registration statement and make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney attorney, accountant or accountant other professional retained by any such Holders Selling Holder or Underwriter to participate(collectively, at each such person’s own expensethe "Inspectors"), in the preparation all financial and other records, pertinent corporate documents and properties of the Registration StatementCompany (collectively, the "Records"), subject to restrictions imposed by any governmental authority governing access to classified information, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant Inspectors in connection with such registration statement. Records which the RegistrationCompany determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the disclosure or release of such Records is requested or required pursuant to oral questions, interrogatories, requests for information or documents or a subpoena or other order from a court of competent jurisdiction or other process; providedprovided that prior to any disclosure or release -------- pursuant to clause (ii), the Inspectors shall provide the Company with prompt notice of any such request or requirement so that the Company may seek an appropriate protective order or waive such Inspectors' obligation not to disclose such Records; and provided further, that if failing the entry of a ---------------- protective order or the waiver by the Company permitting the disclosure or release of such representatives Records, the Inspectors, upon advice of counsel, are compelled to disclose such Records, the Inspectors may disclose that portion of the Records which counsel has advised the Inspectors that the Inspectors are compelled to disclose. Each Selling Holder of such Registrable Securities agrees that information obtained by it solely as a result of such inspections (not including any information obtained from a third party who, insofar as is known to the Selling Holder after reasonable inquiry, is not prohibited from providing such information by a contractual, legal or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory fiduciary obligation to the Company, prior ) shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such is made generally available to the release or public. Each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of any such information;
3.1.11 obtain Records is sought in a “comfort” letter from court of competent jurisdiction, give notice to the Company and allow the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters at its expense, to undertake appropriate action to prevent disclosure of the type customarily covered by “comfort” letters as Records deemed confidential.
(h) The Company will otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the managing Underwriter may reasonably requestSEC, and may be found reasonably satisfactory to a majority-in-interest of the participating Holders;
3.1.12 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and may be found reasonably satisfactory to a majority in interest of the participating Holders;
3.1.13 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriters of such offering;
3.1.14 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the a period of at least twelve (12) 12 months, beginning within three months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement registration statement, which satisfies earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder Act.
(or any successor rule promulgated thereafter i) The Company will use its commercially reasonable best efforts (a) to cause all such Registrable Securities to be listed on each national securities exchange on which similar securities issued by the CommissionCompany are then listed (if any);
3.1.15 , if the Registration involves listing of such Registrable Securities is then permitted under the Registration rules of such exchange or (b) to secure designation of all such Registrable Securities as a National Association of Securities Dealers Automatic Quotation ("NASDAQ") "national market system security" within the meaning of Rule 11Aa2-l of the SEC or, to secure NASDAQ authorization for such Registrable Securities, if similar securities issued by the Company are so designated.
(j) The Company may require each Selling Holder of Registrable Securities involving gross proceeds to promptly furnish in excess of $25,000,000, use its reasonable efforts writing to make available senior executives the Company such information regarding the distribution of the Registrable Securities as the Company may from time to participate in customary “road show” presentations that time reasonably request and such other information as may be reasonably requested by the Underwriter in any Underwritten Offering; and
3.1.16 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, legally required in connection with such Registrationregistration.
(k) The Chairman of the Board of Directors of the Company, the Chief Executive Officer of the Company and other members of the management of the Company will cooperate fully in any offering of Registrable Securities pursuant to Section 2.1 hereof, including, without limitation, participation in meetings with potential investors, preparation of all materials for such investors, and making management of the Company available for "road show" presentations and similar selling efforts. Each Selling Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3.1(e) hereof, such Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(e) hereof (such period during which a Selling Holder is required to refrain from disposition of Registrable Securities, a "Suspension Period"), and, if so directed by the Company, such Selling Holder will deliver to the Company all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Company shall give such notice, the Company shall extend the period during which such registration statement shall be maintained effective (including the period referred to in Section 3.1(a) hereof) by the number of days during the period from and including the date of the giving of notice pursuant to Section 3.1(e) hereof to the date when the Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform with the requirements of Section 3.1(e) hereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Century Maintenance Supply Inc)
