Filings; Information. Whenever Holders validly request that any Registrable Securities be registered pursuant to Section 2.2 hereof, the Issuer will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request: (a) The Issuer will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer then qualifies or which counsel for the Issuer 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 and remain effective for a period of not less than 90 days; provided that if the Issuer shall furnish to the Holders making a request pursuant to Section 2.2 a resolution of its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"), the Issuer shall have a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists. (b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement. (c) The Issuer will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder and each Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder and Underwriter, if any, 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 as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential. (d) After the filing of the registration statement, the Issuer will promptly notify each Selling Holder of Registrable 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 Issuer will use its reasonable best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holder; provided that the Issuer 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 (C) consent to general service of process in any such jurisdiction. (f) The Issuer will promptly notify each Selling Holder of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or 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 not misleading and promptly make available to each Selling Holder any such supplement or amendment. (g) 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 disposition of such Registrable Securities. (h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential. (i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests. (j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11 (a) of the Securities Act. (k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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 3 contracts
Samples: Registration Rights Agreement (Conseco Inc), Registration Rights Agreement (Conseco Inc), Registration Rights Agreement (Appaloosa Management Lp)
Filings; Information. Whenever Holders validly request First Reserve requests that any Registrable Securities be registered pursuant to Section 2.2 5.2(a) hereof, the Issuer Company will use its reasonable best efforts to effect the registration of such Registrable Securities and to permit the sale of such Registrable Securities in accordance with the intended method of disposition thereof thereof, as quickly promptly as is practicable, and in connection with any such request:
(ai) The Issuer the Company will as expeditiously as practicable possible, but in no event later than 30 days after receipt of a request to file a registration statement with respect to such Registrable Securities, prepare and file with the Commission SEC a registration statement Registration Statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 thereofthereof and which is reasonably satisfactory to First Reserve, and use its reasonable best efforts to cause such filed registration statement Registration Statement to become and remain effective for a period of not less than 90 daysdays (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold); provided that if at the Issuer shall furnish time the Company receives a request to file a Registration Statement with respect to Registrable Securities or thereafter, the Company is engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such Registration Statement or a related prospectus or supplement thereto (but would not be required if such Registration Statement were not filed) and the board of directors of the Company determines in good faith that such disclosure would be materially detrimental to the Holders making a request pursuant to Section 2.2 a resolution of Company and its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")stockholders, the Issuer Company shall have a period of not more than 180 120 days (less the number of days during the previous 12 months that the use of a Prospectus was suspended pursuant to Section 5.2(d)(vi) and/or this Section 5.2(d)(i)) within which to file such registration statement measured from the date of the notice is sent to the Holders Company's receipt of First Reserve's request for registration in accordance with Section 2.2 or, in the case 5.2(a) hereof or to file any supplement required by Section 5.2(d)(vi). The filing of a registration statement may only be deferred once for any potential transaction or event or related transactions or events that could arise as a result of negotiations or other activities and any registration statement whose filing has been deferred as a result shall be filed in connection with forthwith if the negotiations or other activities are disclosed or terminated. In order to defer the filing of a Demand Registrationregistration statement pursuant to this Section 5.2(d)(i), the Issuer may cause Company shall promptly, upon determining to seek such registration statement deferral, deliver to be withdrawn and its effectiveness terminated First Reserve a certificate signed by the President or may postpone amending or supplementing Chief Financial Officer of the Company stating that the Company is deferring such registration statement until such Valid Business Reason no longer existsfiling pursuant to this Section 5.2(d)(i).
(bii) The Issuer the Company will prepare and file with the Commission SEC such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for the period set forth in Section 5.2(d)(i) and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) all securities covered by such time as all of Registration Statement during such Registrable Securities and other securities have been disposed of period in accordance with the intended methods of disposition or otherwise by the Selling Holders sellers thereof set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementRegistration Statement.
(ciii) The Issuer the Company will, if requested, prior to filing a registration statement or prospectus Registration Statement or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder First Reserve and each Underwriterapplicable managing underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to First Reserve and each such Selling Holder and Underwriterunderwriter, if any, such number of copies of such registration statementRegistration Statement, each amendment and supplement 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 prospectusProspectus) and as First Reserve or each such other documents as such Selling Holder or Underwriter underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(div) After the filing of the registration statementRegistration Statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement First Reserve of any stop order issued or or, to the Company's knowledge, threatened to be issued by the Commission SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it as soon as possible if entered.
(ev) The Issuer the Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder First Reserve reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequests; provided that the Issuer Company 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 (esubparagraph 5.2(d)(v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(fvi) The Issuer the Company will as promptly as is practicable notify each Selling Holder of such Registrable SecuritiesFirst Reserve, at any time when a prospectus relating thereto Prospectus is required by law to be delivered under the Securities Actin connection with sales by an underwriter or dealer, of the discovery of any condition or the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each Selling Holder First Reserve and to the underwriters any such supplement or amendment. First Reserve agrees that, upon receipt of any notice from the Company of the occurrence of any event of the kind described in the preceding sentence, First Reserve will forthwith discontinue the offer and sale of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until receipt by First Reserve and the underwriters of the copies of such supplemented or amended Prospectus and, if so directed by the Company, First Reserve will deliver to the Company all copies, other than permanent file copies, then in First Reserve'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 5.2(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 the Company shall make available to First Reserve such supplemented or amended Prospectus.
(gvii) The Issuer 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 sale of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (iviii) the disclosure of such Records is necessary Company will furnish 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished to each Selling Holder First Reserve and to each Underwriter, if any, underwriter a signed counterpart, addressed to such Selling Holder or Underwriterunderwriter, of (i) an opinion or opinions of counsel to the Issuer Company and (ii) a comfort letter or comfort letters from the IssuerCompany's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering underwriter reasonably requests.
(jix) The Issuer the Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statementRegistration Statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities ActAct and the rules and regulations of the SEC thereunder.
(kx) The Issuer the Company will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system market on which similar securities issued by the Issuer are Common Stock is then listed or quotedlisted. The Issuer Company may require each Selling Holder of Registrable Securities First Reserve to furnish promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and First Reserve, the plan of distribution of the Registrable Securities and other information as the Issuer Company may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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 3 contracts
Samples: Shareholder Agreements (Pride International Inc), Shareholder Agreements (Pride International Inc), Shareholders Agreement (Pride International Inc)
Filings; Information. Whenever Holders validly the First Reserve Funds request that any Registrable Securities be registered pursuant to Section 2.2 2(a) hereof, the Issuer Superior will use its reasonable best efforts to effect the registration of such Registrable Securities and to permit the sale of such Registrable Securities in accordance with the intended method of disposition thereof thereof, as quickly promptly as is practicable, and in connection with any such request:
(ai) The Issuer Superior will as expeditiously as practicable possible, but in no event later than 30 days after receipt of a request to file a registration statement with respect to such Registrable Securities, prepare and file with the Commission SEC a registration statement Registration Statement on any form for which the Issuer Superior then qualifies or and which counsel for the Issuer Superior 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 thereofthereof and which is reasonably satisfactory to the First Reserve Funds, and use its reasonable best efforts to cause such filed registration statement Registration Statement to become and remain effective for a period of not less than 90 daysdays (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold); provided that if at the Issuer shall furnish to the Holders making time Superior receives a request pursuant to Section 2.2 a resolution of its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such file a registration statement with respect to Registrable Securities, Superior is engaged in confidential negotiations or other confidential business activities, disclosure of which would be filed as expeditiously as practicable or required in such registration statement (but would not be required if such registration statement were not filed) and the board of directors of Superior determines in good faith that such registration disclosure would be materially detrimental to Superior and offering would materially interfere with any material financingits stockholders, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"), the Issuer Superior shall have a period of not more than 180 120 days (less the number of days during the previous 12 months that the use of a Prospectus was suspended pursuant to Section 2(d)(vi) and/or this Section 2(d)(i)) within which to file such registration statement measured from the date of Superior's receipt of the notice is sent to the Holders First Reserve Funds's request for registration in accordance with Section 2.2 or, in the case 2(a) hereof. The filing of a registration statement may only be deferred once for any potential transaction or event or related transactions or events that could arise as a result of negotiations or other activities and any registration statement whose filing has been deferred as a result shall be filed in connection with forthwith if the negotiations or other activities are disclosed or terminated. In order to defer the filing of a Demand Registration, the Issuer may cause such registration statement pursuant to be withdrawn and its effectiveness terminated this Section 2(d)(i), Superior shall promptly, upon determining to seek such deferral, deliver to the First Reserve Funds a certificate signed by the President or may postpone amending or supplementing Chief Financial Officer of Superior stating that Superior is deferring such registration statement until such Valid Business Reason no longer existsfiling pursuant to this Section 2(d)(i).
(bii) The Issuer Superior will prepare and file with the Commission SEC such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for the period set forth in Section 2(d)(i) and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) all securities covered by such time as all of Registration Statement during such Registrable Securities and other securities have been disposed of period in accordance with the intended methods of disposition or otherwise by the Selling Holders sellers thereof set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementRegistration Statement.
(ciii) The Issuer Superior will, if requested, prior to filing a registration statement or prospectus Registration Statement or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder the First Reserve Funds and each Underwriterapplicable managing underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the First Reserve Funds and each such Selling Holder and Underwriterunderwriter, if any, such number of copies of such registration statementRegistration Statement, each amendment and supplement 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 prospectusProspectus) and as the First Reserve Funds or each such other documents as such Selling Holder or Underwriter underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(div) After the filing of the registration statementRegistration Statement, the Issuer Superior will promptly notify each Selling Holder of Registrable Securities covered by such registration statement the First Reserve Funds of any stop order issued or or, to Superior's knowledge, threatened to be issued by the Commission SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it as soon as possible if entered.
(ev) The Issuer Superior will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder the First Reserve Funds reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer 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 paragraph (esubparagraph 2(d)(v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(fvi) The Issuer Superior will as promptly as is practicable notify each Selling Holder of such Registrable Securitiesthe First Reserve Funds, at any time when a prospectus relating thereto Prospectus is required by law to be delivered under the Securities Actin connection with sales by an underwriter or dealer, of the discovery of any condition or the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each Selling Holder the First Reserve Funds and to the underwriters any such supplement or amendment. The First Reserve Funds agree that, upon receipt of any notice from Superior of the occurrence of any event of the kind described in the preceding sentence, the First Reserve Funds will forthwith discontinue the offer and sale of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until receipt by the First Reserve Funds and the underwriters of the copies of such supplemented or amended Prospectus and, if so directed by Superior, the First Reserve Funds will deliver to Superior all copies, other than permanent file copies, then in the First Reserve Funds' possession of the most recent Prospectus covering such Registrable Securities at the time of receipt of such notice. In the event Superior shall give such notice, Superior shall extend the period during which such Registration Statement shall be maintained effective as provided in Section 2(e)(i) by the number of days during the period from and including the date of the giving of such notice to the date when Superior shall make available to the First Reserve Funds such supplemented or amended Prospectus.
(gvii) The Issuer Superior 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 sale of such Registrable Securities.
(hviii) The Issuer Superior 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information is made generally available furnish 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished to each Selling Holder First Reserve Funds and to each Underwriter, if any, underwriter a signed counterpart, addressed to the First Reserve Funds or such Selling Holder or Underwriterunderwriter, of (i) an opinion or opinions of counsel to the Issuer Superior and (ii) a comfort letter or comfort letters from the IssuerSuperior's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the First Reserve Funds or the managing Underwriter for the offering underwriter reasonably requests.
(jix) The Issuer Superior will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statementRegistration Statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities ActAct and the rules and regulations of the SEC thereunder.
(kx) The Issuer Superior will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system market on which similar securities issued by the Issuer are Common Stock is then listed or quotedlisted. The Issuer Superior may require each Selling Holder of Registrable Securities the First Reserve Funds to furnish promptly furnish in writing to the Issuer Superior such information regarding such Selling Holder and the First Reserve Funds, the plan of distribution of the Registrable Securities and other information as the Issuer Superior may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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 2 contracts
Samples: Registration Rights Agreement (Superior Energy Services Inc), Merger Agreement (Superior Energy Services Inc)
Filings; Information. Whenever Holders validly request First Reserve requests that any Registrable Securities be registered pursuant to Section 2.2 5.2(a) hereof, the Issuer Company will use its reasonable best efforts to effect the registration of such Registrable Securities and to permit the sale of such Registrable Securities in accordance with the intended method of disposition thereof thereof, as quickly promptly as is practicable, and in connection with any such request:
(ai) The Issuer the Company will as expeditiously as practicable possible, but in no event later than 30 days after receipt of a request to file a registration statement with respect to such Registrable Securities, prepare and file with the Commission SEC a registration statement Registration Statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 thereofthereof and which is reasonably satisfactory to First Reserve, and use its reasonable best efforts to cause such filed registration statement Registration Statement to become and remain effective for a period of not less than 90 daysdays (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold); provided that if at the Issuer shall furnish to time the Holders making Company receives a request pursuant to Section 2.2 a resolution of its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such file a registration statement with respect to Registrable Securities, the Company is engaged in confidential negotiations or other confidential business activities, disclosure of which would be filed as expeditiously as practicable or required in such registration statement (but would not be required if such registration statement were not filed) and the board of directors of the Company determines in good faith that such registration disclosure would be materially detrimental to the Company and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")stockholders, the Issuer Company shall have a period of not more than 180 120 days (less the number of days during the previous 12 months that the use of a Prospectus was suspended pursuant to Section 5.2(d)(vi) and/or this Section 5.2(d)(i)) within which to file such registration statement measured from the date of the notice is sent to the Holders Company's receipt of First Reserve's request for registration in accordance with Section 2.2 or, in the case 5.2(a) hereof. The filing of a registration statement may only be deferred once for any potential transaction or event or related transactions or events that could arise as a result of negotiations or other activities and any registration statement whose filing has been deferred as a result shall be filed in connection with forthwith if the negotiations or other activities are disclosed or terminated. In order to defer the filing of a Demand Registrationregistration statement pursuant to this Section 5.2(d)(i), the Issuer may cause Company shall promptly, upon determining to seek such registration statement deferral, deliver to be withdrawn and its effectiveness terminated First Reserve a certificate signed by the President or may postpone amending or supplementing Chief Financial Officer of the Company stating that the Company is deferring such registration statement until such Valid Business Reason no longer existsfiling pursuant to this Section 5.2(d)(i).
(bii) The Issuer the Company will prepare and file with the Commission SEC such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for the period set forth in Section 5.2(d)(i) and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) all securities covered by such time as all of Registration Statement during such Registrable Securities and other securities have been disposed of period in accordance with the intended methods of disposition or otherwise by the Selling Holders sellers thereof set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementRegistration Statement.
(ciii) The Issuer the Company will, if requested, prior to filing a registration statement or prospectus Registration Statement or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder First Reserve and each Underwriterapplicable managing underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to First Reserve and each such Selling Holder and Underwriterunderwriter, if any, such number of copies of such registration statementRegistration Statement, each amendment and supplement 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 prospectusProspectus) and as First Reserve or each such other documents as such Selling Holder or Underwriter underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(div) After the filing of the registration statementRegistration Statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement First Reserve of any stop order issued or or, to the Company's knowledge, threatened to be issued by the Commission SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it as soon as possible if entered.
(ev) The Issuer the Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder First Reserve reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequests; provided PROVIDED that the Issuer Company 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 (esubparagraph 5.2(d)(v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(fvi) The Issuer the Company will as promptly as is practicable notify each Selling Holder of such Registrable SecuritiesFirst Reserve, at any time when a prospectus relating thereto Prospectus is required by law to be delivered under the Securities Actin connection with sales by an underwriter or dealer, of the discovery of any condition or the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each Selling Holder First Reserve and to the underwriters any such supplement or amendment. First Reserve agrees that, upon receipt of any notice from the Company of the occurrence of any event of the kind described in the preceding sentence, First Reserve will forthwith discontinue the offer and sale of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until receipt by First Reserve and the underwriters of the copies of such supplemented or amended Prospectus and, if so directed by the Company, First Reserve will deliver to the Company all copies, other than permanent file copies, then in First Reserve'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 5.2(e)(i) 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 First Reserve such supplemented or amended Prospectus.
(gvii) The Issuer 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 sale of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (iviii) the disclosure of such Records is necessary Company will furnish 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished to each Selling Holder First Reserve and to each Underwriter, if any, underwriter a signed counterpart, addressed to such Selling Holder or Underwriterunderwriter, of (i) an opinion or opinions of counsel to the Issuer Company and (ii) a comfort letter or comfort letters from the IssuerCompany's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering underwriter reasonably requests.
(jix) The Issuer the Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statementRegistration Statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities ActAct and the rules and regulations of the SEC thereunder.
(kx) The Issuer the Company will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system market on which similar securities issued by the Issuer are Common Stock is then listed or quotedlisted. The Issuer Company may require each Selling Holder of Registrable Securities First Reserve to furnish promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and First Reserve, the plan of distribution of the Registrable Securities and other information as the Issuer Company may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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 2 contracts
Samples: Shareholders Agreement (Pride International Inc), Securities Purchase Agreement (Pride International Inc)
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered In connection with a Demand Registration pursuant to Section 2.2 2.01 hereof, the Issuer Corporation will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Corporation will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Corporation then qualifies or and which counsel for the Issuer Corporation 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, thereof and use its reasonable best efforts to cause such filed registration statement to become and remain effective for a period such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of not less than 90 dayssuch securities; provided that if the Issuer Corporation shall furnish to Buyer a certificate signed by the Holders making a request pursuant to Section 2.2 a resolution of its Board of Directors Corporation's Chairman, President or any Vice-President stating that in their his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Corporation or its shareholders for such a registration statement to be filed as expeditiously as practicable possible (because the sale of Registrable Securities covered by such Registration Statement or that such registration and offering the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason"Corporation), the Issuer shall have Corporation may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 days; provided, that during any 360-day period there shall be a period of at least 120 consecutive days within 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 file a Demand Registration would otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Corporation's fiscal year, and (ii) the Securities Act requires the Corporation to include audited financials as of the end of such fiscal year, the Corporation may delay the effectiveness of such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCorporation will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each the Selling Holder Holders, and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Selling Holders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Selling Holders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialHolders.
(dc) After the filing of the registration statement, the Issuer Corporation will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or 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 stop order or to remove it if entered.
(ed) The Issuer Corporation will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Corporation will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(d), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fe) The Issuer Corporation will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder 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 amended 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 most recent prospectus covering such Registrable Securities at the time of 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 number of days during the period from and including the date of the giving of such notice to the date when the Corporation shall make available to the Selling Holders such supplemented or amended prospectus.
(gf) The Issuer 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 facilitate the disposition sale of such Registrable Securities.
(hg) The Issuer will make available for inspection by any Selling Holder, At the request of 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which an underwritten offering the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer Corporation will use reasonable best efforts to cause to be furnished to each Selling Holder and to each Underwriter, if any, a signed counterpart, addressed to such Selling Holder or Underwriter, of furnish (i) an opinion or opinions of counsel counsel, addressed to the Issuer Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from the IssuerCorporation's independent public accountants, each in customary form and accountants covering such customary matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering may reasonably requestsrequest.
(jh) The Issuer Corporation will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities ActAct and the rules and regulations of the Commission thereunder.
(ki) The Issuer Corporation will use its commercially reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or quoted on each inter-dealer automated quotation system on which similar securities issued by the Issuer are Common Stock is then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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 2 contracts
Samples: Stock Purchase Agreement (Scott Walter Jr), Stock Purchase Agreement (RCN Corp /De/)
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered In connection with a Demand Registration pursuant to Section 2.2 2.01 hereof, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 and remain effective for a period such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of not less than 90 dayssuch securities; and provided that if (i) the Issuer shall furnish to the Holders making a request effective date of any registration statement filed pursuant to Section 2.2 a resolution Demand Registration would otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereofCompany's fiscal year, and promptly gives (ii) the Holders making Securities Act requires the Company to include audited financials as of the end of such request written notice that such determination has been made (a "Valid Business Reason")fiscal year, the Issuer shall have a period Company may delay the effectiveness of not more than 180 days within which to file such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each the Selling Holder Holders, and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Selling Holders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Selling Holders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialHolders.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or 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 stop order or to remove it if entered.
(ed) The Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(d), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fe) The Issuer Company will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder 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 amended 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 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.
(gf) The Issuer 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 sale of such Registrable Securities.
(hg) The Issuer will make available for inspection by any Selling Holder, At the request of 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which an underwritten offering, the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer Company will use reasonable best efforts to cause to be furnished to each Selling Holder and to each Underwriter, if any, a signed counterpart, addressed to such Selling Holder or Underwriter, of furnish (i) an opinion or opinions of counsel counsel, addressed to the Issuer Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from the IssuerCompany's independent public accountants, each in customary form and accountants covering such customary matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering may reasonably requestsrequest.
(jh) The Issuer Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities ActAct and the rules and regulations of the Commission thereunder.
(ki) The Issuer Company will use its commercially reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or quoted on each inter-dealer automated quotation system or over-the-counter bulletin board on which similar securities issued by the Issuer are Common Stock is then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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 2 contracts
Samples: Subscription Agreement (Inyx Inc), Registration Rights Agreement (Doblique Inc)
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered In connection with the Shelf Registration Statement pursuant to Section 2.2 hereof, the Issuer will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof Parties agree as quickly as practicable, and in connection with any such requestfollows:
(a) The Issuer Stockholder will notify the Company at least 5 business days prior to any Holder making any offer or sale of any Registrable Securities pursuant to the Shelf Registration Statement other than as expeditiously as practicable prepare contemplated by clause (x) of the last sentence of Section 2.2 (which will not require such notice), to the extent such offer or sale will require the preparation and file with distribution of an amendment or supplement to the Commission prospectus forming a registration statement on any form for which part of the Issuer then qualifies or which counsel for Shelf Registration Statement. Such notice shall contain such information regarding the Issuer shall deem appropriate and which form shall be available for selling Holders, the sale proposed plan of underwriting of the Registrable Securities (if applicable) and such other information as may be legally required in connection with such registration (which notice may be required to be registered thereunder updated with such required information as the Company may from time to time reasonably request). The Company will promptly incorporate such information in accordance with the intended method of distribution thereofShelf Registration Statement, and use its reasonable best efforts pursuant to cause such filed registration statement a post-effective amendment or supplement, if necessary, including a prospectus supplement. The Company shall be entitled, by written notice to become and remain effective the Stockholder, to postpone or suspend for a reasonable period of time (not less than 90 days; provided that to exceed a total of 60 days during the period of effectiveness of the Shelf Registration Statement) (the "Blackout Period") the proposed offering of Registrable Securities if the Issuer Company shall furnish to the Holders making a request pursuant to Section 2.2 a resolution of its Board of Directors stating that determine in their good faith judgment it would be disadvantageous that such offering is reasonably likely to interfere with a pending or contemplated merger, sale or acquisition of assets, recapitalization or other corporate action or policies of the Issuer Company (other than sales of equity securities of the Company or its shareholders securities convertible into or exchangeable for such a registration statement equity securities of the Company, unless the Company agrees to include the Registrable Securities sought to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"), the Issuer shall have a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to sold by the Holders in accordance with Section 2.2 orthe offering by the Company). If the Company elects to so postpone or suspend the proposed offering of Registrable Securities, the Company shall, to the extent necessary, amend or supplement the Shelf Registration Statement to permit the offering of Registrable Securities as soon as is reasonably practicable, but in any event, within the number of days remaining in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsBlackout Period.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a registration statement or prospectus the Shelf Registration Statement or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder the Stockholder and each Underwritermanaging underwriter, if any, and their respective counsel, copies thereof (which documents shall will be subject to the review and comment of such Selling Holder, Underwriter and counseltheir review), and thereafter furnish, without charge, furnish to the Stockholder and each such Selling Holder and Underwriterunderwriter, if any, such number of copies of such registration statementthe Shelf Registration Statement, each amendment and supplement any amendments and supplements thereto (in each case including all exhibits thereto and documents incorporated by reference therein), ) and the prospectus and any prospectus supplements included in such registration statement the Shelf Registration Statement (including each preliminary prospectus) and as the Stockholder or such other documents as such Selling Holder or Underwriter underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless Securities;
(i) the disclosure Company will notify the Stockholder (and, if requested, confirm such notice in writing), promptly after the Company shall receive notice thereof (x) of such information is necessary the time when the Shelf Registration Statement has become effective or when any amendment or supplement to avoid the Shelf Registration Statement or correct any prospectus or prospectus supplement forming a misstatement part thereof has been filed, and (y) of any request by the Commission for the amendment or omission in such registration statement supplement of the Shelf Registration Statement, the prospectus or any prospectus supplement or for additional information; and (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential.
(d) After after the filing of the registration statementShelf Registration Statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement the Stockholder of any stop order issued or or, to the knowledge of the Company, threatened to be issued by the Commission and take all reasonable necessary actions required to prevent the entry of such stop order or to remove it if such stop order is entered.;
(ed) The Issuer the Company will use its all reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder the Stockholder or the managing underwriter, if any, reasonably (in the light of such Selling Holder's the Holders' intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequests; provided PROVIDED, HOWEVER, that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (ed), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.;
(fe) The Issuer will the Company shall, as promptly as practicable, notify each Selling Holder of the Stockholder (and, if requested, confirm such Registrable Securitiesnotice in writing), at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actdelivered, of the discovery of any condition or the occurrence of any an event requiring the preparation of a supplement or amendment to such prospectus or prospectus supplement so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus or prospectus supplement 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 therein, in the light of the circumstances under which they were made, not misleading misleading, and as promptly as practicable make available to each Selling Holder the Holders and to the underwriters, if any, 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 Shelf Registration Statement until receipt of the copies of such supplemented or amended prospectus or prospectus supplement 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 or prospectus supplement, as the case may be, 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 Shelf Registration Statement shall be maintained effective as provided in Section 2.2(a)(ii) 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 or prospectus supplement, as the case may be;
(gf) The Issuer the Company will enter into customary agreements (including an underwriting agreement in customary formform that is reasonably acceptable to it) and take such other actions as are reasonably required in order to expedite or facilitate the disposition sale of such Registrable Securities.;
(hg) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which underwritten offerings, at the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities request of the Issuer Stockholder or its Affiliates unless and until such information is made generally available any managing underwriter, the Company will furnish 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished to each Selling Holder Stockholders and to each Underwriterunderwriter, if any, a signed counterpart, addressed to such Selling Holder or Underwriterthe Holders and each underwriter, of (i) an opinion or opinions of counsel to the Issuer Company (including a "Rule 10b-5" opinion) and (ii) a comfort letter or comfort letters from the IssuerCompany's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.letters delivered to such parties;
(jh) The Issuer the Company will otherwise use its reasonable best efforts make available for inspection by the Holders participating in such offering, any underwriter participating in any disposition pursuant to comply with the Shelf Registration Statement, any attorney, accountant or other agent retained by any such Holder or such underwriter, all applicable rules financial and regulations other records, pertinent corporate documents and properties of the CommissionCompany, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney, accountant or agent in connection with the Shelf Registration Statement, and cause such officers, directors and employees to be available for discussion of such information and other customary due diligence matters;
(i) commencing within three months after the effective date of the Shelf Registration Statement, the Company will make generally available to its securityholders, as soon as reasonably practicable, an a consolidated earnings statement covering the first fiscal year a period of the Issuer commencing after the effective date of the registration statement12 months, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities Act.Act and the rules and regulations of the Commission thereunder;
(kj) The Issuer the Company will use its reasonable best efforts to cause all such Common Shares (including, without limitation, all Registrable Securities Securities) to be listed or quoted on each securities exchange exchange, if any, or inter-dealer automated the National Association of Securities Dealers' (the "NASD") Nasdaq National Market or Nasdaq SmallCap Market interdealer quotation system systems on which similar securities issued by the Issuer Company are then listed, but only if such securities are listed or quoted. The Issuer may require each Selling Holder of Registrable Securities at such time;
(k) the Company will use reasonable best efforts to promptly furnish in writing to cause the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer shall make available to the Selling Holders of Registrable Securities covered by the Shelf Registration Statement to be registered with or approved by such registration statement a prospectus supplemented other governmental agencies or amended authorities as may be necessary to conform enable the Holders participating in such offering or the underwriters, if any, to consummate the disposition of such offering of Registrable Securities, subject to the proviso contained in clause (d) above;
(l) the Company will cooperate and assist in any filings required to be made with the requirements NASD and in performance of Section 3.1(fany due diligence investigation by any underwriter (including any "qualified independent underwriter") hereofthat is required to be retained in accordance with the rules and regulations of the NASD; and
(m) the Company will provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of the Shelf Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Insilco Holding Co), Registration Rights Agreement (Goldman Sachs Group Lp)
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.2 2.01 and Section 2.02 hereof, the Issuer Corporation will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Corporation will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Corporation then qualifies or and which counsel for the Issuer Corporation 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 and remain effective for a period such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of not less than 90 dayssuch securities; provided that if the Issuer Corporation shall furnish to the Holders making Buyer a request pursuant to Section 2.2 a resolution of its Board of Directors certificate signed by the Corporation's Chairman, President or any Vice-President stating that in their his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Corporation or its shareholders for such a registration statement to be filed as expeditiously as practicable possible (because the sale of Registrable Securities covered by such Registration Statement or that such registration and offering the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason"Corporation), the Issuer shall have Corporation may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 days; provided, that during any 360 day period there shall be a period of at least 120 consecutive days within 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 file a Demand Registration would otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Corporation's fiscal year, and (ii) the Securities Act requires the Corporation to include audited financials as of the end of such fiscal year, the Corporation may delay the effectiveness of such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCorporation will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each the Selling Holder Holders, and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Selling Holders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Selling Holders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialHolders.
(dc) After the filing of the registration statement, the Issuer Corporation will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or 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 stop order or to remove it if entered.
(ed) The Issuer Corporation will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Corporation will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(f) The Issuer will promptly notify each Selling Holder of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or 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 not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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 2 contracts
Samples: Stock Purchase Agreement (Hicks Thomas O), Stock Purchase Agreement (RCN Corp /De/)
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered pursuant to Section 2.2 hereof, the Issuer will use its reasonable best efforts to The Company shall effect the registration and with respect to the sale of such the Registrable Securities by the Investor in accordance with the intended method methods of disposition thereof thereof. Without limiting the foregoing, the Company in each such case will do the following as quickly 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:
(a) The Issuer will as expeditiously as practicable Subject to Section 1.1(e), the Company shall (i) prepare and file with the Commission a registration statement on any form for which the Issuer then qualifies or which counsel for the Issuer 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 Registration Statement; (ii) use its commercially reasonable best efforts to cause such filed registration statement Registration Statement to become and to remain effective for a period of not less than 90 days; provided that if the Issuer shall furnish to the Holders making a request (pursuant to Section 2.2 a resolution of its Board of Directors stating that in their good faith judgment it would be disadvantageous to Rule 415 under the Issuer Securities Act or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made otherwise); (a "Valid Business Reason"), the Issuer shall have a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.
(biii) The Issuer will prepare and file with the Commission such amendments and supplements to such registration statement the Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for the time period prescribed by Section 4.2 and in order to effectuate the purpose of this Agreement, the Purchase Agreement, and the Warrant; and (iv) comply in all material respects with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) all securities covered by such time as all of Registration Statement during such Registrable Securities and other securities have been disposed of period in accordance with the intended methods of disposition or otherwise by the Selling Holders Investor set forth in such registration statement Registration 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 Trading Day following the second Settlement Date with respect to a Draw Down and, provided further, however, that the Investor shall be responsible for the delivery of the Prospectus to the Persons to whom the Investor sells the Shares and (ii) 90 daysthe Warrant Shares, and the Investor agrees to dispose of Registrable Securities in either case, after compliance with the initial effective date plan of such registration statementdistribution described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws.
(cb) The Issuer will, prior Company shall deliver to filing a registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder the Investor and each Underwriter, if any, and their respective its counsel, which documents shall be subject to in accordance with the review and comment notice provisions of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder and Underwriter, if anySection 4.8, such number of copies of such registration statementthe Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference thereinthereto), the prospectus included in such registration statement Prospectus (including each preliminary prospectus) and such other documents or information as such Selling Holder the Investor or Underwriter counsel may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Selling Holder of such Registrable Securities agrees Securities, provided, however, 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 Issuer or its Affiliates unless and until such information is made generally available to the public. Each Selling Holder of extent reasonably practicable, such Registrable Securities further agrees that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialdelivery may be accomplished via electronic means.
(dc) After the filing of the registration statementRegistration Statement, the Issuer will Company shall promptly notify each Selling Holder of Registrable Securities covered by such registration statement the Investor of any stop order issued or 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.
(ed) The Issuer will Company shall use its commercially reasonable best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions each jurisdiction in the United States as any Selling Holder the Investor may reasonably (in the light of such Selling Holder's its intended plan of distribution) requests request, and (ii) cause such the Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities in the United States as may be necessary to enable by virtue of the Selling Holders to consummate business and operations of the disposition of such Registrable Securities Company and do any and all other customary acts and things that may be reasonably necessary or advisable to enable such Selling Holder the Investor to consummate the disposition of the Registrable Securities owned by such Selling HolderSecurities; provided provided, however, that the Issuer Company 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 (eSection 2.1(d), (B) subject itself to taxation in any such jurisdiction jurisdiction, consent or (C) consent subject itself to general service of process in any such jurisdiction, change any existing business practices, benefit plans or outstanding securities or amend or otherwise modify the Charter or Bylaws.
(fe) The Issuer will promptly notify each Selling Holder of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or 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 not misleading and promptly Company shall make available to each Selling Holder the Investor (and will deliver to Investor’s counsel), (i) subject to restrictions imposed by the United States federal government or any such supplement agency or amendment.
(g) The Issuer instrumentality thereof, copies of all public correspondence between the Commission and the Company concerning the Registration Statement and 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 Securities.
(h) The Issuer will also make available for inspection by any Selling Holder, any Underwriter participating in any disposition pursuant to such registration statement the Investor and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter the Investor (collectively, the "“Inspectors"”), (ii) upon reasonable advance notice during normal business hours all financial and other records, pertinent corporate documents and properties of the Issuer Company (collectively, the "“Records"”) as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors Company’s officers and employees to supply all information reasonably requested by any Inspectors in connection with the Registration Statement; provided, however, that (x) the Company shall not be obligated to disclose any portion of the Records consisting of either (A) material non-public information or (B) confidential information of a third party and (y) any such registration statementInspectors must agree in writing for the benefit of the Company not to use or disclose any such Records except as provided in this Section 2.1(e). Records which that the Issuer Company determines, in good faith, to be confidential and which 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 such registration statement or (ii) the release of such Records is ordered 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. Each Selling Holder 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 Registrable Securities 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 Issuer Company or its Affiliates affiliates unless and until such information is made generally available to the public. Each Selling Holder of such Registrable Securities 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 Issuer Company and allow the IssuerCompany, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(if) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each Company shall otherwise comply in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply 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 make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year registrar for all of the Issuer commencing after Registrable Securities covered by such Registration Statement not later than the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Actsuch Registration Statement.
(kh) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued Investor shall cooperate with the Company, as reasonably requested by the Issuer are then listed or quotedCompany, in connection with the preparation and filing of any Registration Statement hereunder. The Issuer Company may require each Selling Holder of Registrable Securities the Investor to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registrationregistration including, without limitation, all such information as may be requested by the Commission, 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. Each Selling Holder The Investor agrees that, upon to provide such information requested in connection with such registration 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 any notice a Blackout Notice from the Issuer of Company, the discovery of any condition or the happening of any event, in each case of the kind described in Section 3.1(f) hereof, such Selling Holder will forthwith Investor shall immediately discontinue disposition of Registrable Securities pursuant to the registration statement Registration Statement covering such Registrable Securities until such Selling Holder's receipt of (i) the Company advises the Investor that the Blackout Period has terminated and (ii) the Investor receives copies of the a supplemented or amended prospectus contemplated by Section 3.1(f) hereof, andprospectus, if necessary. If so directed by the IssuerCompany, such Selling Holder the Investor will deliver to the Issuer Company (at the Issuer's expenseexpense of the Company) or destroy (and deliver to the Company a certificate of destruction) all copies, copies in the Investor’s possession (other than permanent a limited number of file copies then in such Selling Holder's possession, copies) of the most recent prospectus covering such Registrable Securities that is current at the time of receipt of such notice. In the event the Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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 2 contracts
Samples: Registration Rights Agreement (Discovery Laboratories Inc /De/), Registration Rights Agreement (Discovery Laboratories Inc /De/)
Filings; Information. Whenever Holders validly the Shareholders request that any Registrable Securities be registered pursuant to Section 2.2 2.1 hereof, the Issuer Company will use its all commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 all commercially reasonable best efforts to cause such filed registration statement to become and remain effective for a period of such period, not less than to exceed 90 days, as may be reasonably necessary to effect the sale of such securities; provided that if the Issuer Company shall furnish to the Holders making Participating Shareholders a request pursuant to Section 2.2 a resolution certificate signed by the Company's Chairman or President stating that in the good faith judgment of its the Company's Board of Directors stating that in their good faith judgment it would be disadvantageous seriously detrimental to the Issuer Company or its shareholders for such a registration statement to be filed or become effective as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")possible, the Issuer shall have Company may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 days within which (provided that the Company may not defer such filing pursuant to file this clause more than once in any 12 month period); and provided further that if (i) the effective date of any 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 the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financials as of the end of such fiscal year, the Company may delay the effectiveness of such registration statement measured from for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year, although the date Company will use all commercially reasonable efforts to minimize the notice is sent to the Holders in accordance with Section 2.2 or, in the case length of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsdelay.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder the Participating Shareholders and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Participating Shareholders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Participating Shareholders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement the Participating Shareholders of any stop order issued or or, to the Company's knowledge, threatened to be issued by the Commission and take all commercially reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(ed) The Issuer Company will use its all commercially reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder the Participating Shareholders reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.1(d), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fe) The Issuer Company will as promptly as is practicable notify each Selling Holder of such Registrable Securitiesthe Participating Shareholders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each Selling Holder the Participating Shareholders and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon Upon receipt of any notice from the Issuer Company of the discovery occurrence of any condition or the happening of any event, in each case event of the kind described in Section 3.1(f) hereofthe preceding sentence, such Selling Holder the Participating Shareholders will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt by the Participating Shareholders and the Underwriters of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such Selling Holder the Participating Shareholders will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such Selling Holder's the Participating Shareholders' possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement shall be maintained effective (including the periods referred to as provided in Sections Section 3.1(a) and 3.1(b) hereof) hereof by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by Participating Shareholders such registration statement a prospectus 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 required in order to conform expedite or facilitate the sale of such Registrable Securities.
(g) At the request of any Underwriter in connection with an underwritten offering, the requirements 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.
(h) The Company will make generally available to its security holders, as soon as reasonably practicable, an earning statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earning statement shall satisfy the provisions of Section 3.1(f11(a) hereofof the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will use all commercially reasonable efforts to cause all such Registrable Securities 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 the Participating Shareholders promptly to furnish in writing to the Company such information regarding the Participating Shareholders, 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 legally required in connection with such registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Level 3 Delaware Holdings Inc), Registration Rights Agreement (Commonwealth Telephone Enterprises Inc /New/)
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.2 2.01 and Section 2.02 hereof, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Subject to Section 2.01(g) hereof, the Company will as expeditiously as practicable prepare and file as soon as practicable (but in any event within 60 days) with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 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 period Shelf Registration, until the earlier of not less than 90 daysthe 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 Issuer Company shall furnish to the Holders making Selling Holder a request pursuant to Section 2.2 a resolution of its certificate signed by the Company's Chairman or President stating that the Board of Directors stating that has determined in their good faith judgment that it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders for such a registration statement to be filed as expeditiously as practicable or that possible because the sale of Registrable Securities covered by such registration and offering statement or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason")Company, the Issuer shall have 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 within which 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 file any particular registration statement; and provided, further, that if (i) the effective date of any 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 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 measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal 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 Issuer 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 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.
(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, 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 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 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 registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) all securities covered by such time as all of registration statement during such Registrable Securities and other securities have been disposed of period in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(cg) The Issuer will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, Company will furnish copies of all such documents to each Selling Holder requesting such registration and each the managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder one signed copy and Underwriter, 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)thereto, the prospectus included in such registration statement (including each preliminary prospectus) and any amendments or supplements thereto, any documents incorporated by reference therein and such other documents as any such 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 such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such the Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in requesting such registration statement or (ii) and the release of such information 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 inspections shall be deemed confidential managing Underwriter, if any, in connection with the offering and shall not be used by it as the basis for any market transactions in the securities sale of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential.
(d) After the filing of the registration statement, the Issuer will promptly notify each Selling Holder of Registrable Securities covered by such registration statement of the prospectus or any stop order issued amendment or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if enteredsupplement thereto).
(eh) The Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to consummate the disposition of such Registrable Securities be kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable such each Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling HolderHolder in such jurisdictions; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(h), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fi) The Issuer Company will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Act, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder Holders and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon Upon receipt of any notice from the Issuer of the discovery occurrence of any condition or the happening of any event, in each case event of the kind described in Section 3.1(f) hereofthe preceding sentence, such Selling Holder Holders will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such receipt by the Selling Holder's receipt Holders and the Underwriters of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such the Selling Holder Holders will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such the possession of Selling Holder's possessionHolders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement shall be maintained effective (including the periods referred to as provided in Sections 3.1(aSection 3.01(a) and 3.1(b) hereof) hereof by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended prospectus.
(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 conform 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, 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.
(o) The Company shall provide a CUSIP number, registrar and transfer agent for the Registrable Securities included in any registration statement not later than the effective date of such registration statement.
(p) The Company shall cooperate with each Selling Holder and each Underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the requirements National Association of Securities Dealers, Inc.
(q) 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 Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act.
(r) The Company will make generally available to its security holders, 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 3.1(f11(a) hereofof the Securities Act and the rules and regulations of the Commission thereunder.
(s) The Company will use its best efforts to cause all such Registrable Securities 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 may be legally required in connection with such registration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Midocean Capital Partners Lp), Registration Rights Agreement (Infocrossing Inc)
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.2 2.01, Section 2.02 and Section 2.03 hereof, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 and remain effective with respect to any Demand Registration or Piggyback Registration, for a period such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of not less than 90 dayssuch securities; provided that if the Issuer Company shall furnish to the Holders making Selling Holder a request pursuant to Section 2.2 a resolution of its certificate signed by the Company's Chairman, President or any Vice-President stating that the Company's Board of Directors stating that has determined in their good faith judgment that it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders for such a registration statement to be filed as expeditiously as practicable possible because the sale of Registrable Securities covered by such Registration Statement or that such registration and offering the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason")Company, the Issuer shall have Company may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 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 within during which the Company can make a registration statement available under this Agreement; and provided further that if (i) the effective date of any registration statement filed pursuant to file a Demand Registration 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 financials as of the end of such fiscal year, the Company may delay the effectiveness of such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each the Selling Holder Holders, and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Selling Holders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Selling Holders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialHolders.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or 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 stop order or to remove it if entered.
(ed) The Issuer Company will use its commercially reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to consummate the disposition of such Registrable Securities be kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable such each Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling HolderHolder in such jurisdictions; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(d), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fe) The Issuer Company will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder 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 3.01(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.
(gf) The Issuer 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 sale of such Registrable Securities.
(g) 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.
(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 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) The Issuer will Company shall promptly make available for inspection by any Selling Holder, any Holder or Underwriter participating in any disposition pursuant to such any registration statement statement, and any attorney, accountant or other professional 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 Issuer Company (collectively, the "Records") ), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the IssuerCompany's officers, directors and employees to supply all information reasonably requested by any Inspectors such Inspector in connection with such registration statement. Records which the Issuer determines; provided, in good faithhowever, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors that unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such the 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 inspections shall be deemed confidential and , the Company shall not be used by it as required to provide any information under this subparagraph (j) if (A) the basis Company believes, after consultation with counsel for any market transactions in the securities of Company, that to do so would cause the Issuer or its Affiliates unless and until Company to forfeit an attorney-client privilege that was applicable to such information is made generally available 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 the public. Each Selling furnishing any such information with respect to (A) or (B) such Holder of such Registrable Securities further 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 Issuer Company and allow the IssuerCompany, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(ij) The Issuer will use reasonable best efforts to Company shall cause the Registrable Securities included in any registration statement to be furnished (A) listed on each securities 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.
(k) The Company shall provide a CUSIP number for the Registrable Securities included in any registration statement 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 disposition of such Registrable Securities and their respective counsel in connection with any filings required to each Underwriterbe made with the National Association of Securities Dealers, if anyInc.
(m) The Company shall during the period when the prospectus is required to be delivered under the Securities Act, a signed counterpartpromptly file all documents required to be filed with the Commission pursuant to Sections 13(a), addressed to such Selling Holder 13(c), 14 or Underwriter, of (i15(d) an opinion or opinions of counsel to the Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requestsExchange Act.
(jn) The Issuer Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by Act and the Issuer are then listed or quotedrules and regulations of the Commission thereunder. The Issuer Company may require each Selling Holder of Registrable Securities Holders promptly to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and Holders, the plan of distribution of the Registrable Securities and other information as the Issuer Company may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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 2 contracts
Samples: Registration Rights Agreement (Icg Services Inc), Registration Rights Agreement (Icg Services Inc)
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered pursuant to Section 2.2 hereofStockholder requests a Demand Registration, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable possible prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 and remain effective for a period of not less than 90 days; provided that if the Issuer Company shall furnish to the Holders making Stockholder a request pursuant to Section 2.2 a resolution of certificate signed by its Board of Directors Chairman, Chief Executive Officer or Chief Financial Officer stating that in their his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders stockholders for such a registration statement to be filed as expeditiously as practicable or that such filed, or, in the case of an effective registration and offering would materially interfere with any material financingstatement, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")for sales to be effected thereunder, the Issuer Company shall have a period of not more than 180 90 days within which to file such registration statement measured from the date of receipt of the notice is sent to the Holders request in accordance with Section 2.2 2.2.1 or, in the case of an effective registration statement, the Company shall be entitled to require Stockholder to refrain from selling Registrable Securities under such registration statement for a period of up to 90 days; provided further that, in the case of a registration statement that has been filed in connection with a Demand Registrationto be filed, the Issuer may cause Company shall be entitled to only one 90 day delay in any 360 day period, and, in the case of an effective registration statement, the Company shall be entitled to require Stockholder to refrain from selling Registrable Securities under such Registration Statement for an aggregate of 90 days in any 360 day period. 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 this Section 2.3.1
(a) hereof by the number of days during the period from and including the date of the giving of notice under this paragraph to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such the date when sales under the registration statement until such Valid Business Reason no longer existsmay recommence.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder Stockholder and each managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to Stockholder and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as Stockholder or such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement Stockholder of any stop order issued or or, to the knowledge of the Company, threatened to be issued by the Commission and take all reasonable necessary actions required to prevent the entry of such stop order or to remove it if entered.
(ed) The Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder Stockholder reasonably (in the light of such Selling HolderStockholder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequests; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (ed), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) generally consent to general service of process in any such jurisdiction.
(fe) The Issuer will Company shall, as promptly as practicable, notify each Selling Holder of such Registrable SecuritiesStockholder, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or the occurrence of any an event requiring the preparation of a supplement or amendment to such registration statement or prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such registration statement or 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 therein, in the light of the circumstances under which they were made, not misleading misleading, and as promptly as practicable make available to each Selling Holder Stockholder and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder Stockholder agrees that, upon receipt of any notice from the Issuer Company of the discovery of any condition or the happening of any event, in each case event of the kind described in Section 3.1(f) hereofthe preceding sentence, such Selling Holder Stockholder will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such Selling Holder Stockholder will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such Selling HolderStockholder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 2.3.1
(including the periods referred to in Sections 3.1(aa) and 3.1(b) hereof) hereof by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by Stockholder such registration statement a prospectus supplemented or amended prospectus.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form and satisfactory in form and substance to conform with the requirements 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 Stockholder and to each managing Underwriter, if any, a signed counterpart, addressed to Stockholder 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 3.1(f11(a) hereofof the 1933 Act.
(i) The Company will use its best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed. The Company may require Stockholder promptly to furnish in writing to the Company such information regarding 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 legally required in connection with such registration.
Appears in 1 contract
Samples: Stockholder Rights Agreement (Morgan Stanley Dean Witter & Co)
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered Shares pursuant to Section 2.2 2.01 hereof, the Issuer Company will use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof Shares as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file as soon as practicable with the Commission a registration statement Registration Statement on any form for which the Issuer Company then qualifies or which counsel for the Issuer shall deem appropriate and which form shall be available for the sale of the Registrable Securities Shares to be registered thereunder in accordance with the intended method of distribution thereofthereof pursuant to Section 2.01, and use its commercially reasonable best efforts to cause such filed registration statement Registration Statement to become and remain effective until earlier of (x) the 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 a period of not less than 90 days; provided that if resale under Rule 144 promulgated under the Issuer shall furnish Securities Act (without regard to the Holders making a request pursuant to Section 2.2 a resolution of its Board of Directors stating that volume limitations contained in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"Rule 144(e))(the “Effectiveness Period”), the Issuer shall have a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.
(b) The Issuer Company will prepare and file with the Commission such furnish to any Selling Holder draft copies of any Registration Statement or Prospectus or any amendments and or supplements thereto proposed to be filed at least five (5) days prior to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementfiling.
(c) The Issuer willCompany will notify the Selling Holders requesting such registration, prior to filing a registration statement as soon as practicable after notice thereof is received by the Company, (i) when the Registration Statement or prospectus any amendment thereto has been filed or becomes effective and the Prospectus or any amendment or supplement theretoto the Prospectus has been filed, furnish copies (ii) of all such documents any request by the Commission for amendments or supplements to each Selling Holder and each Underwriter, if anythe Registration Statement or the Prospectus or for additional information, and their respective counsel, which documents shall be subject (iii) of the receipt by the Company of any notification with respect to the review and comment suspension of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder and Underwriter, if any, 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 as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition qualification of the Registrable Securities owned by Shares for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialpurpose.
(d) After the filing of the registration statementRegistration Statement, the Issuer Company will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or issued, or, to the Company’s knowledge, threatened to be issued, by the Commission and take all use its commercially reasonable actions required efforts to prevent the entry of such stop order or to remove it if entered.
(e) The Issuer Company will prepare and file with the Commission such amendments, 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 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 Securities Act, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement (to the extent such compliance obligations fall on the Company) during such period in accordance with the intended methods of disposition by the Selling Holders set forth in such Registration Statement.
(f) The Company will furnish to each Selling Holder requesting such registration and the managing Underwriters, if any, without charge, such number of conformed copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any amendments or supplements thereto, as any such Selling Holder or managing Underwriter may reasonably request in order to facilitate the disposition of the Registrable Shares.
(g) The Company will use its commercially reasonable best efforts to qualify (ior exempt) register or qualify the Registrable Securities Shares for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the disposition of such Registrable Securities Effectiveness Period; and do any and all other acts and things that which may be reasonably necessary or advisable to enable such each Selling Holder to consummate the disposition of the Registrable Securities Shares owned by such Selling HolderHolder in such jurisdictions; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(g), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fh) The Issuer Company will as promptly as practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus Prospectus relating thereto to the sale of the Registrable Shares is required by law to be delivered under the Securities Act, of the discovery of any condition or the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus Prospectus so that, as thereafter delivered to the purchasers of such Registrable SecuritiesShares, such prospectus 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder 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 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 Shares at the time of receipt of such notice.
(gi) The Issuer Company will enter into such customary agreements (including an underwriting under-writing agreement in customary form, including customary representations, warranties, covenants, conditions and indemnities) and take such other customary actions as are reasonably required necessary in order to expedite or facilitate the disposition sale of such Registrable SecuritiesShares.
(hj) The Issuer will make available for inspection by any Selling Holder, At the request of 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which an underwritten offering, the Issuer 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 Company will furnish an opinion 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished to each Selling Holder and to each Underwriter, if any, a signed counterpartcounsel, addressed to the Underwriters, covering such Selling Holder or Underwriter, of (i) an opinion or opinions of counsel to customary matters as the Issuer managing Underwriters may reasonably request and (ii) a comfort letter or comfort letters (and updates thereof) from the Issuer's Company’s independent public accountants, each in customary form and accountants covering such customary matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering Underwriters may reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Actrequest.
(k) If requested by the managing Underwriters or any Selling Holder, the Company shall promptly incorporate in a Prospectus supplement or post effective amendment such information as the managing Underwriters or any Selling Holder reasonably requests to be included therein, to the extent counsel for the Company deems inclusion of such information to be necessary for such Selling Holder to be able to sell Registrable Shares, and promptly make all required filings of such Prospectus supplement or post effective amendment.
(l) The Issuer will Company shall use its commercially reasonable best efforts to cause all such the Registrable Securities Shares included in any Registration Statement to be (A) listed or quoted on each securities exchange or inter-dealer automated quotation system exchange, if any, on which similar securities issued by the Issuer Company are then listed or quoted. (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.
(m) The Issuer may require Company shall provide a CUSIP number, registrar and transfer agent for the Registrable Shares included in any Registration Statement not later than the effective date of such Registration Statement.
(n) The Company and each Selling Holder shall cooperate in connection with any filings required to be made with FINRA.
(o) The Company shall, during the period when the Prospectus 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 Registrable Securities the Exchange Act and the rules and regulations promulgated thereunder.
(p) The Company may require Selling Holders promptly to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and Holders, the plan of distribution of the Registrable Securities as the Issuer may from time to time reasonably request Shares and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended agree to conform with the requirements of Section 3.1(f) hereofdo so as promptly as reasonably practicable.
Appears in 1 contract
Samples: Registration Rights Agreement (Sun Communities Inc)
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered Shares pursuant to Section 2.2 2.01 hereof, the Issuer Company will use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof Shares as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file as soon as practicable with the Commission a registration statement Registration Statement on any form for which the Issuer Company then qualifies or which counsel for the Issuer shall deem appropriate and which form shall be available for the sale of the Registrable Securities Shares to be registered thereunder in accordance with the intended method of distribution thereofthereof pursuant to Section 2.01, and use its commercially reasonable best efforts to cause such filed registration statement Registration Statement to become and remain effective until earlier of (x) the 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 a period of not less than 90 days; provided that if resale under Rule 144 promulgated under the Issuer shall furnish Securities Act (without regard to the Holders making a request pursuant to Section 2.2 a resolution of its Board of Directors stating that volume limitations contained in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"Rule 144(e))(the “Effectiveness Period”), the Issuer shall have a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.
(b) The Issuer Company will prepare and file with the Commission such furnish to any Selling Holder draft copies of any Registration Statement or Prospectus or any amendments and or supplements thereto proposed to be filed at least five (5) days prior to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementfiling.
(c) The Issuer willCompany will notify the Selling Holders requesting such registration, prior to filing a registration statement as soon as practicable after notice thereof is received by the Company, (i) when the Registration Statement or prospectus any amendment thereto has been filed or becomes effective and the Prospectus or any amendment or supplement theretoto the Prospectus has been filed, furnish copies (ii) of all such documents any request by the Commission for amendments or supplements to each Selling Holder and each Underwriter, if anythe Registration Statement or the Prospectus or for additional information, and their respective counsel, which documents shall be subject (iii) of the receipt by the Company of any notification with respect to the review and comment suspension of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder and Underwriter, if any, 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 as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition qualification of the Registrable Securities owned by Shares for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialpurpose.
(d) After the filing of the registration statementRegistration Statement, the Issuer Company will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or issued, or, to the Company’s knowledge, threatened to be issued, by the Commission and take all use its commercially reasonable actions required efforts to prevent the entry of such stop order or to remove it if entered.
(e) The Issuer Company will prepare and file with the Commission such amendments, 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 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 Securities Act, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement (to the extent such compliance obligations fall on the Company) during such period in accordance 2413899.2 with the intended methods of disposition by the Selling Holders set forth in such Registration Statement.
(f) The Company will furnish to each Selling Holder requesting such registration and the managing Underwriters, if any, without charge, such number of conformed copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any amendments or supplements thereto, as any such Selling Holder or managing Underwriter may reasonably request in order to facilitate the disposition of the Registrable Shares.
(g) The Company will use its commercially reasonable best efforts to qualify (ior exempt) register or qualify the Registrable Securities Shares for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the disposition of such Registrable Securities Effectiveness Period; and do any and all other acts and things that which may be reasonably necessary or advisable to enable such each Selling Holder to consummate the disposition of the Registrable Securities Shares owned by such Selling HolderHolder in such jurisdictions; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(g), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fh) The Issuer Company will as promptly as practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus Prospectus relating thereto to the sale of the Registrable Shares is required by law to be delivered under the Securities Act, of the discovery of any condition or the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus Prospectus so that, as thereafter delivered to the purchasers of such Registrable SecuritiesShares, such prospectus 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder 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 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 Shares at the time of receipt of such notice.
(gi) The Issuer Company will enter into such customary agreements (including an underwriting under-writing agreement in customary form, including customary representations, warranties, covenants, conditions and indemnities) and take such other customary actions as are reasonably required necessary in order to expedite or facilitate the disposition sale of such Registrable Securities.Shares. 2413899.2
(hj) The Issuer will make available for inspection by any Selling Holder, At the request of 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which an underwritten offering, the Issuer 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 Company will furnish an opinion 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished to each Selling Holder and to each Underwriter, if any, a signed counterpartcounsel, addressed to the Underwriters, covering such Selling Holder or Underwriter, of (i) an opinion or opinions of counsel to customary matters as the Issuer managing Underwriters may reasonably request and (ii) a comfort letter or comfort letters (and updates thereof) from the Issuer's Company’s independent public accountants, each in customary form and accountants covering such customary matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering Underwriters may reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Actrequest.
(k) If requested by the managing Underwriters or any Selling Holder, the Company shall promptly incorporate in a Prospectus supplement or post effective amendment such information as the managing Underwriters or any Selling Holder reasonably requests to be included therein, to the extent counsel for the Company deems inclusion of such information to be necessary for such Selling Holder to be able to sell Registrable Shares, and promptly make all required filings of such Prospectus supplement or post effective amendment.
(l) The Issuer will Company shall use its commercially reasonable best efforts to cause all such the Registrable Securities Shares included in any Registration Statement to be (A) listed or quoted on each securities exchange or inter-dealer automated quotation system exchange, if any, on which similar securities issued by the Issuer Company are then listed or quoted. (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.
(m) The Issuer may require Company shall provide a CUSIP number, registrar and transfer agent for the Registrable Shares included in any Registration Statement not later than the effective date of such Registration Statement.
(n) The Company and each Selling Holder shall cooperate in connection with any filings required to be made with FINRA.
(o) The Company shall, during the period when the Prospectus 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 Registrable Securities the Exchange Act and the rules and regulations promulgated thereunder.
(p) The Company may require Selling Holders promptly to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and Holders, the plan of distribution of the Registrable Securities as the Issuer may from time to time reasonably request Shares and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended agree to conform with the requirements of Section 3.1(f) hereofdo so as promptly as reasonably practicable.
Appears in 1 contract
Samples: Registration Rights Agreement (Sun Communities Inc)
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered pursuant to Section 2.2 hereofa Holder requests a Demand Registration or Form S-3 Registration, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Registerable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable possible prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer Company shall deem appropriate and which form shall be available for the sale of the Registrable Registerable 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 and remain effective for a period of not less than 90 120 days; provided that (i) if the Issuer Company shall furnish to the Holders making Holder a request pursuant to Section 2.2 a resolution of certificate signed by its Board of Directors Chairman, Chief Executive Officer or Chief Financial Officer stating that in their his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders stockholders for such a registration statement to be filed as expeditiously as practicable or that such filed, or, in the case of an effective registration and offering would materially interfere with any material financingstatement, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")for sales to be effected thereunder, the Issuer Company shall have a period of not more than 180 120 days within which to file such registration statement measured from the date of receipt of the notice is sent to the Holders request in accordance with Section 2.2 2.01 or, in the case of an effective registration statement, the Company shall be entitled to require Holder to refrain from selling Registerable Securities under such registration statement for a period of up to 120 days and (ii) the Company shall not be obligated to file any registration statement pursuant to Sections 2.01 and Section 2.03 hereof if the Company has filed within the previous 120 days a registration statement under the 1933 Act (other than on Form S-8); provided further that, in the case of a registration statement that has been filed in connection with a Demand Registrationto be filed, the Issuer may cause Company shall be entitled to only one 120 day delay in any 360 day period, and, in the case of an effective registration statement, the Company shall be entitled to require Holder to refrain from selling Registerable Securities under such Registration Statement for an aggregate of 120 days in any 360 day period. 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 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 be withdrawn and its effectiveness terminated or may postpone amending or supplementing such the date when sales under the registration statement until such Valid Business Reason no longer existsmay recommence.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies to a representative designated by Holders of all a majority of the Registerable Securities covered by such documents to each Selling Holder registration statement and each managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to such Selling each Holder and each such Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such Selling Holder or such Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialRegisterable Securities.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement of any stop order issued or or, to the knowledge of the Company, threatened to be issued by the Commission and take all reasonable necessary actions required to prevent the entry of such stop order or to remove it if entered.
(ed) The Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Registerable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder Holders reasonably (in the light of such Selling Holder's Holders' intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (ed), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) generally consent to general service of process in any such jurisdiction.
(fe) The Issuer will Company shall, as promptly as practicable, notify each Selling Holder of such Registrable SecuritiesHolder, at any time when a prospectus relating thereto to the sale of the Registerable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or the occurrence of any an event requiring the preparation of a supplement or amendment to such registration statement or prospectus so that, as thereafter delivered to the purchasers of such Registrable Registerable Securities, such registration statement or 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 therein, in the light of the circumstances under which they were made, not misleading misleading, and as promptly as practicable make available to each Selling Holder Holders and to the Underwriters any such supplement or amendment. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in the preceding sentence, Holder will forthwith discontinue the offer and sale of Registerable Securities pursuant to the registration statement covering such Registerable Securities until receipt of the copies of such supplemented or amended prospectus and, if so directed by the Company, Holder will deliver to the Company all copies, other than permanent file copies then in Holder's possession, of the most recent prospectus covering such Registerable 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 Holders such supplemented or amended prospectus.
(gf) The Issuer Company will enter into customary agreements (including an underwriting agreement in customary formform 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 disposition sale of such Registrable Registerable Securities.
(hg) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished furnish to each Selling Holder and to each managing Underwriter, if any, a signed counterpart, addressed to such Selling each Holder or and each Underwriter, of (i) an opinion or opinions of counsel to the Issuer Company and (ii) a comfort letter or comfort letters from the IssuerCompany's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requestsletters delivered to such parties.
(jh) The Issuer Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities 1933 Act.
(ki) The Issuer Company will use its reasonable best efforts to cause all such Registrable Registerable Securities covered by such Registration Statement to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer Company are then listed or quotedlisted. The Issuer Company may require each Selling Holder of Registrable Securities promptly to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and Holder, the plan of distribution of the Registrable Registerable Securities and other information as the Issuer Company may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered pursuant to Section 2.2 hereofa Holder requests a Demand Registration or Form S-3 Registration, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Registerable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable possible prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer Company shall deem appropriate and which form shall be available for the sale of the Registrable Registerable 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 and remain effective for a period of not less than 90 120 days; provided that (i) if the Issuer Company shall furnish to the Holders making Holder a request pursuant to Section 2.2 a resolution of certificate signed by its Board of Directors Chairman, Chief Executive Officer or Chief Financial Officer stating that in their his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders stockholders for such a registration statement to be filed as expeditiously as practicable or that such filed, or, in the case of an effective registration and offering would materially interfere with any material financingstatement, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")for sales to be effected thereunder, the Issuer Company shall have a period of not more than 180 120 days within which to file such registration statement measured from the date of receipt of the notice is sent to the Holders request in accordance with Section 2.2 2.1 or, in the case of an effective registration statement, the Company shall be entitled to require Holder to refrain from selling Registerable Securities under such registration statement for a period of up to 120 days and (ii) the Company shall not be obligated to file any registration statement pursuant to Sections 2.01 and Section 2.03 hereof if the Company has filed within the previous 120 days a registration statement under the 1933 Act (other than on Form S-8); provided further that, in the case of a registration statement that has been filed in connection with a Demand Registrationto be filed, the Issuer may cause Company shall be entitled to only one 120 day delay in any 360 day period, and, in the case of an effective registration statement, the Company shall be entitled to require Holder to refrain from selling Registerable Securities under such Registration Statement for an aggregate of 120 days in any 360 day period. 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 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 be withdrawn and its effectiveness terminated or may postpone amending or supplementing such the date when sales under the registration statement until such Valid Business Reason no longer existsmay recommence.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies to a representative designated by Holders of all a majority of the Registerable Securities covered by such documents to each Selling Holder registration statement and each managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to such Selling each Holder and each such Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such Selling Holder or such Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialRegisterable Securities.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement of any stop order issued or or, to the knowledge of the Company, threatened to be issued by the Commission and take all reasonable necessary actions required to prevent the entry of such stop order or to remove it if entered.
(ed) The Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Registerable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder Holders reasonably (in the light of such Selling Holder's Holders' intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (ed), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) generally consent to general service of process in any such jurisdiction.
(fe) The Issuer will Company shall, as promptly as practicable, notify each Selling Holder of such Registrable SecuritiesHolder, at any time when a prospectus relating thereto to the sale of the Registerable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or the occurrence of any an event requiring the preparation of a supplement or amendment to such registration statement or prospectus so that, as thereafter delivered to the purchasers of such Registrable Registerable Securities, such registration statement or 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 therein, in the light of the circumstances under which they were made, not misleading misleading, and as promptly as practicable make available to each Selling Holder Holders and to the Underwriters any such supplement or amendment. Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in the preceding sentence, Holder will forthwith discontinue the offer and sale of Registerable Securities pursuant to the registration statement covering such Registerable Securities until receipt of the copies of such supplemented or amended prospectus and, if so directed by the Company, Holder will deliver to the Company all copies, other than permanent file copies then in Holder's possession, of the most recent prospectus covering such Registerable 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 Holders such supplemented or amended prospectus.
(gf) The Issuer Company will enter into customary agreements (including an underwriting agreement in customary formform 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 disposition sale of such Registrable Registerable Securities.
(hg) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished furnish to each Selling Holder and to each managing Underwriter, if any, a signed counterpart, addressed to such Selling each Holder or and each Underwriter, of (i) an opinion or opinions of counsel to the Issuer Company and (ii) a comfort letter or comfort letters from the IssuerCompany's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requestsletters delivered to such parties.
(jh) The Issuer Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities 1933 Act.
(ki) The Issuer Company will use its reasonable best efforts to cause all such Registrable Registerable Securities covered by such Registration Statement to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer Company are then listed or quotedlisted. The Issuer Company may require each Selling Holder of Registrable Securities promptly to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and Holder, the plan of distribution of the Registrable Registerable Securities and other information as the Issuer Company may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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: Investment Agreement (Morgan Stanley Dean Witter Discover & Co)
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.1, Section 2.2 and Section 2.3 hereof, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 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 period Shelf Registration, until the earlier of not less than 90 daysthe sale of all Registrable Securities thereunder and the fifth anniversary of the date on which the Commission declares the Shelf Registration effective; provided that if the Issuer Company shall furnish to the Holders making Selling Holder a request pursuant to Section 2.2 a resolution of its certificate signed by the Company's Chairman, President or any Executive Vice-President or Vice-President stating that the Company's Board of Directors stating that has determined in their good faith judgment that it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders stockholders for such a registration statement to be filed as expeditiously as practicable possible because the sale of Registrable Securities covered by such Registration Statement or that such registration and offering the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason")Company, the Issuer shall have Company may postpone the filing or effectiveness of a registration statement for a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 120 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder and each Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder and Underwriter, if any, 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 as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential.
(d) After the filing of the registration statement, the Issuer will promptly notify each Selling Holder of Registrable 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 Issuer will use its reasonable best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holder; provided that the Issuer 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 (C) consent to general service of process in any such jurisdiction.
(f) The Issuer will promptly notify each Selling Holder of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or 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 not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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: Registration Rights Agreement (Lsf3 Capital Investments I LLC)
Filings; Information. Whenever Holders validly request any Holder requests that -------------------- any Registrable Securities be registered pursuant to a Demand Registration, or when any Minority Holder requests that any Registrable Securities be registered pursuant to Section 2.2 hereofa Minority Holder Demand Registration, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such requestand:
(a) The Issuer In connection with any Demand Registration request, the Company will as expeditiously as practicable possible prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or which counsel for the Issuer 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 and remain effective for a period until the earlier of not less than 90 days(i) one hundred eighty (180) days from the date such registration statement became effective or (ii) the date on which the sale of Registrable Securities has been completed; provided that that, if the Issuer Company -------- shall furnish to the Holders any Holder making a request pursuant to Section 2.2 2.1 a resolution of certificate signed by either its Board of Directors Chairman or the Vice Chairman stating that in their his good faith judgment it would be significantly disadvantageous to the Issuer or its shareholders Company for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")possible, the Issuer Company shall have a period of not more than 180 ninety (90) days within which to file such registration statement measured from the date of receipt of the notice is sent to the Holders request in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists2.1.
(b) The Issuer In connection with a Minority Holder Demand Registration request, the Company will as expeditiously as possible prepare and file with the Commission such amendments and supplements to such a registration statement and the prospectus used in connection therewith as may be necessary use its best efforts to keep cause such filed registration statement to become and remain effective and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) one hundred eighty (180) days from the date such time registration statement became effective or (ii) the date on which the sale of Registrable Securities has been completed; provided that, if the Company shall furnish to the Minority Holder -------- making such Minority Holder Demand Registration request 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 for such a registration statement to be filed as all expeditiously as possible, the Company shall have a period of not more than one hundred eighty (180) days within which to file such registration statement measured from the date of receipt of such Registrable Securities and other securities have been disposed of Minority Holder Demand Registration request in accordance with Section 2.3; provided further -------- ------- that the intended methods Company's right under this Section 3.1(b) to delay the filing of disposition or otherwise by the Selling Holders set forth in such a registration statement and (ii) 90 days, for a Minority Holder Demand Registration may only be exercised once in either case, after the initial effective date of such registration statementa 365-day period with respect to a specific Minority Holder.
(c) The Issuer Company will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder Holder, counsel representing the Selling Holders, and each Underwriter, if any, and their respective counselof the Registrable Securities covered by such registration statement, copies of such registration statement as proposed to be filed, together with exhibits thereto, which documents shall will be subject to the prompt review and comment of approval by the foregoing, and thereafter furnish to such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder counsel and Underwriter, if any, 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 as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential.
(d) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable 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 Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities in the United States as may be necessary to enable by virtue of the Selling Holders to consummate business and operations of the disposition of such Registrable Securities Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holder; provided that the Issuer Company 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 (C) consent to general service of process in any such jurisdiction.
(f) The Issuer will promptly notify each Selling Holder of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or 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 not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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
Filings; Information. Whenever Holders validly request that any If the Company is required to -------------------- effect or cause the registration of Registrable Securities be registered pursuant to Section 2.2 hereof2.1, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable possible prepare and file with the Commission a registration statement on any an appropriate form for which the Issuer then qualifies or which counsel for the Issuer 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 and remain effective for a period of not less than 90 daysdays (or such shorter period as is required to complete the distribution of the Equity Shares); provided that if the Issuer shall furnish to Company may postpone the Holders making a request pursuant to Section 2.2 a resolution filing of its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"), the Issuer shall have for a period of not more than 180 120 days within which to file such registration statement measured from the date of receipt of the notice is sent to the Holders request in accordance with Section 2.2 or2.1 if the Company reasonably determines that such a filing would (i) require the disclosure of material non-public information concerning the Company, which disclosure would be reasonably expected to materially adversely affect the Company or (ii) prevent, delay or otherwise adversely affect the Company from making an offering of equity securities for its own account (which offering the Company has a good faith intention to consummate) in which case the Holders shall have the piggy-back registration rights set forth in Section 2.2, and in the case of (i) or (ii) furnishes to the Holder requesting registration a registration statement certificate signed by an executive officer of the Company to such effect; provided that has been filed the Company shall only be entitled to postpone any such filing two times in connection with any twenty-four month period. If the Company postpones the filing of a Demand RegistrationRegistration Statement, it shall promptly notify the Issuer may cause Holders in writing when the events or circumstances permitting such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existspostponement have ended.
(b) The Issuer Company will as expeditiously as possible prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement continuously effective for a period of not less than 90 days or such shorter period which will terminate when all securities covered by such registration statement have been sold and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) all securities covered by such time as all of registration statement during such Registrable Securities and other securities have been disposed of period in accordance with the intended methods of disposition or otherwise by the Selling Holders participating therein as set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer Upon request, the Company will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder participating in such offering, counsel representing each Holder (if requested), and each Underwriter, if any, and their respective counselof the Registrable Securities covered by such registration statement copies of such registration statement as proposed to be filed, together with exhibits thereto, which documents shall will be subject to the review and comment of by the foregoing (and the Company and its Counsel shall give due regard to such Selling Holder, Underwriter and counselcomments) promptly after delivery, and thereafter furnish, without charge, furnish to such Selling Holder Holders, counsel and Underwriter, 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 such Selling Holder Holder, counsel or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialparticipating Holders.
(d) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered participating in such offering, and (if requested by any Holder) 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 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 issued suspending the effectiveness of a registration statement or threatened the initiation of any proceedings for that purpose, (iv) if at any time when a prospectus is required by the Commission Securities Act to be delivered in connection with sales of the Registrable Securities the representations and take 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 reasonable actions 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 prevent be stated therein or necessary to make the entry statements therein not misleading, and that in the case of such stop order the prospectus, it will not contain any untrue statement of a material fact required to be stated therein or necessary to remove it if enteredmake 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 Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder the Holders participating in the offering reasonably (in the light of such Selling Holder's the intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities in the United States as may be necessary to enable by virtue of the Selling Holders to consummate business and operations of the disposition of such Registrable Securities Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder the participating Holders to consummate the disposition of the Registrable Securities owned by such Selling Holderthem; provided that the Issuer Company 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 (C) consent to general service of process in any such jurisdiction.
(f) The Issuer Company will promptly notify each Selling Holder take all reasonable actions required to prevent the entry, or obtain the withdrawal, of such any order suspending the effectiveness of a registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any Registrable SecuritiesSecurities for sale in any jurisdiction, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or earliest moment.
(g) Upon the occurrence of any event requiring contemplated by paragraph 3.1(d)(iv), (vi) or (vii) above, the preparation of Company will (i) prepare a supplement or post-effective amendment to such registration statement or a supplement to the related prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading misleading, and (ii) promptly make available to each Selling Holder the Holders any such supplement or amendment.
(gh) The Issuer Company will enter into customary agreements (including including, if applicable, an underwriting agreement in customary formform 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.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer Company will use reasonable best efforts to cause to be furnished furnish to each Selling Holder participating in the offering 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 Issuer Company, and (ii) a comfort letter or comfort letters from the IssuerCompany's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort lettersletter, as the case may be, as such Holder(s) or the managing Underwriter for therefor reasonably requests so long as consistent with the offering reasonably requestsprofessional standards then applicable to such letters.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer Company will use its reasonable best efforts (a) to cause all such any class of Registrable Securities (including, as appropriate, related American Depositary Shares) to be listed or quoted on a national securities exchange (if such Equity Shares are not already so listed) and on each additional national securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange or quoted(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 use its reasonable best efforts 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. (the "NASD"). ---- The Issuer Company may require each Selling Holder of Registrable Securities participating in an offering covered by this Agreement to furnish promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and the distribution of the Registrable Securities by such Holder as the Issuer 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 NASD. The Company may delay or withdraw such registration, or exclude a Holder from participating, if a Holder fails to provide such information. Each Selling Holder agrees that, upon receipt of any notice from the Issuer Company of the discovery of any condition or the happening of any event, in each case event of the kind described in Section 3.1(fSections 3.1(d)(iii), (iv), (v), (vi) and (vii) hereof, such Selling the 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(f3.1(g) hereof, and, if so directed by the IssuerCompany, such Selling each Holder will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies copies, then in such Selling Holder's possession, possession of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement shall be maintained effective (including the periods period referred to in Sections Section 3.1(a) and 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(f3.1(d)(iii), (iv), (v), (vi) or (vii) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement Holder(s) a prospectus supplemented or amended to conform with the requirements of Section 3.1(f3.1(g) hereof. In connection with any 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.
(k) In connection with any underwritten Demand Registration pursuant to Section 2.1, the Company will participate in a reasonable manner in any marketing efforts reasonably requested by the underwriters.
Appears in 1 contract
Filings; Information. Whenever Holders validly request that any the Company is required to effect or cause the registration of Registrable Securities be registered pursuant to Section 2.2 2.1 hereof, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method method(s) of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which Registration Statement with respect to the Issuer then qualifies or which counsel for the Issuer shall deem appropriate offer 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, such securities and use its reasonable best efforts to cause such filed registration statement Registration Statement to become 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 a more than 12 months (or such shorter period of which will terminate when all Securities covered by such Registration have been sold, but not less than 90 days; provided that if the Issuer shall furnish prior to the Holders making a request pursuant expiration of the applicable period referred to in Section 2.2 a resolution 4(3) of its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration Securities Act and offering would materially interfere with any material financingRule 174 thereunder, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"if applicable), the Issuer shall have a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.
(b) The Issuer Company will prepare and file with the Commission such amendments and supplements post-effective amendments to such registration statement and the prospectus used in connection therewith Registration Statement as may be necessary to keep such Registration Statements effective for as long as such registration statement is required to remain effective pursuant to the 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 Securities Act; and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or applicable to it with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) such time as all of such Registrable Securities and other securities have been disposed of covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after Registration Statement or supplement to the initial effective date of such registration statementProspectus.
(c) The Issuer willCompany, at least ten (10) Business Days prior to filing a registration statement Registration Statement or prospectus a Prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder and each Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder and UnderwriterRegistration Statement or Prospectus, if any, 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 as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential.
(d) After the filing of the registration statement, the Issuer will promptly notify each Selling Holder of Registrable 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 Issuer will use its reasonable best efforts furnish to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such each Selling Holder's intended plan of distribution) requests and , (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the not more than one counsel representing all Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holder; provided that the Issuer 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 (C) consent to general service of process in any such jurisdiction.
(f) The Issuer will promptly notify each Selling Holder of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or 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 not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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.Selling
Appears in 1 contract
Samples: Registration Rights Agreement (Compass Knowledge Holdings Inc)
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.2 2.01 and Section 2.02 hereof, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file as soon as practicable (but in any event within 60 days) with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 and remain effective for a such period as may be reasonably necessary to effect the sale of not less than 90 dayssuch securities; provided that if the Issuer Company shall furnish to the Holders making Selling Holder a request pursuant to Section 2.2 a resolution of its Board of Directors certificate signed by the Company's Chairman or President stating that the Company's Board has determined in their good faith judgment that it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders for such a registration statement to be filed as expeditiously as practicable or that possible because the sale of Registrable Securities covered by such registration and offering statement or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason")Company, the Issuer shall have 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 within which in the aggregate for all such provisions during any period of 365 consecutive days; provided, further, that the Company may exercise its rights under Section 3.01(a) only once with respect to file any particular registration statement; and provided, further, that if (i) the effective date of any 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 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 measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.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 others or sales of the Registerable Securities, file a post effective amendment to a Shelf Registration Statement or prospectus supplement or 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 Issuer 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 365 consecutive days;
(c) Before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will prepare 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 5 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) 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, 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 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 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 registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) all securities covered by such time as all of registration statement during such Registrable Securities and other securities have been disposed of period in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.;
(cg) The Issuer will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents Furnish to each Selling Holder requesting such registration and each the managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder one signed copy and Underwriter, 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)thereto, the prospectus included in such registration statement (including each preliminary prospectus) and any amendments or supplements thereto, any documents incorporated by reference therein and such other documents as any such 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 such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such the Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in requesting such registration statement or (ii) and the release of such information 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 inspections shall be deemed confidential managing Underwriter, if any, in connection with the offering and shall not be used by it as the basis for any market transactions in the securities sale of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential.
(d) After the filing of the registration statement, the Issuer will promptly notify each Selling Holder of Registrable Securities covered by such registration statement of the prospectus or any stop order issued amendment 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.supplement thereto);
(eh) The Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to consummate the disposition of such Registrable Securities be kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable such each Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling HolderHolder in such jurisdictions; provided that the Issuer Company 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 (e3.01(h), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.;
(fi) The Issuer Company will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Act, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder Holders and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon Upon receipt of any notice from the Issuer of the discovery occurrence of any condition or the happening of any event, in each case event of the kind described in Section 3.1(f) hereofthe preceding sentence, such Selling Holder Holders will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such receipt by the Selling Holder's receipt Holders and the Underwriters of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such the Selling Holder Holders will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such the possession of Selling Holder's possessionHolders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement shall be maintained effective (including the periods referred to as provided in Sections 3.1(aSection 3.01(a) and 3.1(b) hereof) hereof by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended prospectus;
(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 conform 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, 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;
(o) The Company shall provide a CUSIP number, registrar and transfer agent for the Registrable Securities included in any registration statement not later than the effective date of such registration statement;
(p) The Company shall cooperate with each Selling Holder and each Underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the requirements National Association of Securities Dealers, Inc.;
(q) 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 Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(r) The Company will make generally available to its security holders, 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 3.1(f11(a) hereofof the Securities Act and the rules and regulations of the Commission thereunder; and
(s) The Company will use its best efforts to cause all such Registrable Securities 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 may be legally required in connection with such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Frontline Capital Group)
Filings; Information. Whenever Holders validly request that any the Company is required to effect or cause the registration of Registrable Securities be registered pursuant to Section 2.2 2.1 hereof, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method method(s) of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which Registration Statement with respect to the Issuer then qualifies or which counsel for the Issuer shall deem appropriate offer 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, such securities and use its reasonable best efforts to cause such filed registration statement Registration Statement to become 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 a more than 12 months (or such shorter period of which will terminate when all Registrable Securities covered by such Registration have been sold, but not less than 90 days; provided that if the Issuer shall furnish prior to the Holders making a request pursuant expiration of the applicable period referred to in Section 2.2 a resolution 4(3) of its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration Securities Act and offering would materially interfere with any material financingRule 174 thereunder, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"if applicable), the Issuer shall have a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.
(b) The Issuer Company will prepare and file with the Commission such amendments and supplements post-effective amendments to such registration statement and the prospectus used in connection therewith Registration Statement as may be necessary to keep such Registration Statements effective for as long as such registration statement is required to remain effective pursuant to the 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 Securities Act; and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or applicable to it with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) such time as all of such Registrable Securities and other securities have been disposed of covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after Registration Statement or supplement to the initial effective date of such registration statementProspectus.
(c) The Issuer willCompany, at least ten (10) Business Days prior to filing a registration statement Registration Statement or prospectus a Prospectus or any amendment or supplement theretoto such Registration Statement or Prospectus, will furnish copies of all such documents to (i) each Selling Holder 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 their respective counselof the Registrable Securities covered by such Registration 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 shall will be subject to the review and comment approval by each of the foregoing within ten (10) Business Days after delivery (except that such Selling Holder, Underwriter review and counselapproval of any Prospectus or any amendment or supplement to such Registration Statement or Prospectus must be within five (5) Business Days after delivery), and thereafter furnishthereafter, without charge, furnish to such Selling Holder Holders, Selling Holders' Counsel and UnderwriterUnderwriters, if any, at the Company's expense, such number of conformed copies of such registration statementRegistration 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 Registration Statement (including each preliminary prospectusProspectus) and such other documents or information as such Selling Holder Holders, Selling Holders' Counsel or Underwriter Underwriters 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 Selling HolderProspectus or any amendment or supplement thereto). The information contained in such documents are confidential Company shall not be disclosed by such Selling Holder unless (i) provide the disclosure Holders' counsel and each Underwriter, if any, a copy of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information is ordered pursuant to a subpoena any and all transmittal letters 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 inspections shall be deemed confidential and shall not be used by it as correspondence to, or received from, the basis for Commission or any market transactions in the securities of the Issuer or its Affiliates unless and until such information is made generally available other governmental body having jurisdiction relating to the public. Each Selling Holder of such Registrable Securities further agrees that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialoffering.
(d) After the filing of the registration statement, the Issuer The Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement of any stop order issued or threatened by the Commission and take all use its reasonable actions required best efforts to prevent the entry of such any stop order or to remove it at the earliest possible moment if entered.
(e) The Issuer will use its reasonable best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holder; provided that the Issuer 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 (C) consent to general service of process in any such jurisdiction[Section Reserved].
(f) The Issuer Company will promptly notify each Selling Holder Holder, Selling Holders' Counsel and any Underwriter in writing, (i) of such 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, at any time Securities (ii) when a prospectus relating thereto is required Prospectus or any Prospectus supplement or post-effective amendment has been filed and, with respect to be delivered under a Registration Statement or any post-effective amendment, when the Securities Actsame has become effective, (iii) of the discovery issuance by the Commission of any condition stop order suspending the effectiveness of a Registration Statement or the occurrence initiation or threatening of any proceedings for that purpose, (iv) of the happening of any event requiring 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 preparation making of a supplement any changes in such Registration Statement, Prospectus or amendment to such prospectus documents so that, as thereafter delivered that they will not to the purchasers best of such Registrable Securities, such prospectus will not the Company's knowledge contain an 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 Registration Statement and Prospectus not misleading in light of the circumstances in which they were made; and, as promptly as practicable thereafter, prepare and promptly make available to each Selling Holder any such file with the Commission and furnish a supplement or amendment.
(g) The Issuer will enter into customary agreements (including an underwriting agreement in customary form) and take amendment to such other actions Prospectus so that, as are reasonably required in order thereafter deliverable to expedite or facilitate the disposition buyers of such Registrable Securities.
(h) The Issuer , such Prospectus will make available for inspection by any Selling Holder, any Underwriter participating in any disposition pursuant not 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 best of the Issuer (collectively, the "Records") as shall be reasonably Company's knowledge contain any untrue statements of a material fact or omit to state a material fact necessary to enable them to exercise their due diligence responsibility, and cause make the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer determinesstatements therein, in good faithlight of the circumstances under which they were made, not misleading, such amendment 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information is made generally available subject 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Holders' review under Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration3.1(c). Each Selling Holder agrees that, upon receipt of any notice in writing from the Issuer Company of the discovery of any condition or the happening of any event, in each case 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 Registration Statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the supplemented or amended prospectus Prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such Selling Holder will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such Selling Holder's possession, of the most recent prospectus Prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement Registration Statement shall be maintained effective (including the periods period referred to in Sections Section 3.1(a) and 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 Issuer Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement Registration Statement a prospectus Prospectus supplemented or amended to 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 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 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.
(i) The Company, during the period when the Prospectus 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.
(j) The Company will use its reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange or quoted on any automated quotation system on which similar securities of the Company are then 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 and register for such Registrable Securities covered by the Registration Statement no later than the effective date of such Registration Statement.
(k) The Company will make available for inspection by any Holder of Registrable Securities covered by the Registration Statement, any Underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant, or other agent retained by any such Holder or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company as such Inspector shall deem necessary or desirable in order to permit it to conduct 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 and respond to all inquiries reasonably requested by any such Inspector in connection with such Registration Statement. The rights granted to the Inspectors in this Section 3(k) shall be conditioned upon the Inspectors agreeing to sign confidentiality agreements prior to receiving information or documentation from the Company.
(1) The Company will, to the extent required in connection with an underwritten offering, (i) use its reasonable best efforts to furnish an opinion of counsel for the Company addressed to the Underwriter and each Selling Holder and dated the date of the closing under the underwriting agreement (if any) (or if such offering is not underwritten, dated the effective date of the Registration Statement), and (ii) use its reasonable best efforts to 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 Registration Statement, provide a CUSIP number for all Registrable Securities, and provide the applicable transfer agents with printed certificates for the Registrable Securities, which are in a term eligible for deposit with The Depository Trust Company.
Appears in 1 contract
Samples: Registration Rights Agreement (Medical Industries of America Inc)
Filings; Information. Whenever Holders validly request Subject to the limitations set forth in Article II, whenever any Stockholder (the “Registering Stockholder”) requests that any Registrable Securities be registered pursuant to Section 2.1, Section 2.2 hereofor Section 2.4, the Issuer Corporation will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is practicable, and in connection with any such request:
(a) The Issuer Corporation will as expeditiously expediously as practicable possible prepare and file with the Commission a registration statement on any form for which the Issuer Corporation then qualifies or and which counsel for the Issuer shall deem Corporation deems 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 and remain effective for a period of not less than 90 daysdays (or any longer period of time required under this Agreement); provided however, that if the Issuer shall furnish Corporation furnishes to the Holders making Registered Stockholder a request pursuant to Section 2.2 a resolution of its Board of Directors certificate signed by the Corporation’s Chief Executive Officer, President or any Vice President stating that in their his good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Corporation or its shareholders stockholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")possible, the Issuer shall have a period Corporation will be entitled to postpone the filing of not more than 180 days within which to file such registration statement measured from for a reasonable period of time following the date on which the notice is sent to Corporation receives the Holders Registrable Stockholder’s request for registration in accordance with Section 2.2 or2.1 or Section 2.4, in but the case aggregate of a registration statement that has been filed in connection with a Demand Registration, such periods of time shall not exceed 90 calendar days during any 12-month period unless the Issuer may cause such registration statement to be withdrawn and Corporation invokes its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsrights under Section 2.1(d).
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer Corporation will, if requested by a Registering Stockholder, at least five Business Days prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish to the Registering Stockholder, if any, copies of all such documents, which documents will be subject to each Selling Holder the review of the Registering Stockholder and each 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 incorporated by reference therein) to which the Registering Stockholder or the managing Underwriter, if any, may reasonably object on a timely basis; and their respective counsel, which documents shall be subject thereafter the Corporation will furnish to the review Registered Stockholder and comment of each such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder and Underwriter, if any, such number of copies of such registration statement, each statement and any amendment and any supplement thereto to such registration statement (in each case including all exhibits thereto to such registration statement and documents incorporated by reference therein), ) and the prospectus included in such registration statement (including each preliminary prospectusprospectus or prospectus supplement) and as the Registered Stockholder or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(dc) After the filing of the registration statement, the Issuer Corporation will promptly notify each Selling Holder of Registrable Securities covered by such registration statement the Registering Stockholder of any stop order issued or 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 stop order or to remove it if entered.
(ed) The Issuer Corporation will use its reasonable best efforts endeavor to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder the Registering Stockholder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequests; provided however, that the Issuer Corporation will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph subsection (ed), (Bii) subject itself to taxation in any such jurisdiction jurisdiction, or (Ciii) consent to general service of process in any such jurisdiction.
(fe) The Issuer will promptly notify each Selling Holder of such Registrable Securities, at At any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under in connection with sales by an Underwriter or dealer, the Securities ActCorporation will notify the Registering Stockholder, of the discovery of any condition or as promptly as is practicable, no the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus so thatthat such prospectus, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an any untrue statement of a material fact effect or omit to state any material fact required to be stated therein in such prospectus or necessary to make the statements therein statement in such prospectus, in the light of the circumstances under which they were made, not misleading and misleading. The Corporation will promptly make available to each Selling Holder the Registering Stockholder and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder Registering Stockholder agrees that, upon receipt of any notice from the Issuer Corporation of the discovery occurrence of any condition or the happening of any event, in each case event of the kind described in the first sentence of this Section 3.1(f) hereof3.1(e), such Selling Holder the Registering Stockholder will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt by the Registering Stockholder and the Underwriters of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCorporation, such Selling Holder the Registering Stockholder will deliver to the Issuer (at the Issuer's expense) Corporation all copies, other than permanent file copies then in such Selling Holder's the Registering Stockholder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In If the event the Issuer shall give Corporation gives such notice, the Issuer shall Corporation will extend the period during which such registration statement shall will be maintained continued effective (including the periods referred to as provided in Sections Section 3.1(a) and 3.1(b) hereof) by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when on which the Issuer shall make Corporation makes available to the Selling Holders Registering Stockholder 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 sale of such Registrable Securities.
(g) The Corporation will use its reasonable best efforts to furnish to the Registering Stockholder and to each Underwriter a signed counterpart, addressed to the Registering Stockholder or such Underwriter, of (i) an opinion or opinions of counsel to the Corporation and (ii) a comfort letter or comfort letters from the Corporation’s independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the Registering Stockholder or the managing Underwriter may reasonably request.
(h) The Corporation will cooperate with the Registering Stockholders and the managing Underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and enabled the Registrable Securities to be in such 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 covered to the Underwriters.
(i) The Corporation will make available for inspection by a representative of the Registering Stockholders, any Underwriter participating in any disposition of Registrable Securities and any attorney or accountant retained by the Registering Stockholders 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 representative, underwriter, attorney or accountant in connection with such registration statement a prospectus supplemented statement; provided however, that any records, information or amended 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 required by court or administrative order or is necessary to conform with respond to inquiries or regulatory authorities, or (iii) disclosure of those records, information or documents, in the opinion of counsel to such Person, is otherwise required by law (including, without limitation, pursuant to the requirements of the Securities Act);
(j) The Corporation will otherwise use all reasonable efforts to comply with all applicable rules and regulations of the Commission, and will make generally available to its security holders, 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 will satisfy the provisions of Section 3.1(f11(a) hereofof the Securities Act and the rules and regulations of the Commission thereunder.
(k) The Corporation will use its reasonable best efforts to cause all such Registrable Securities to be listed on each securities exchange (or quoted on Nasdaq) on which similar securities issued by the Corporation are then listed (or quoted) or, if not so listed (or quoted), on a national securities exchange or Nasdaq.
(l) The Corporation will use its reasonable best efforts to cause its directors, officers and other appropriate employees to participate in any presentations regarding any underwritten Public Offering reasonably requested by the Registering Stockholders or the managing Underwriter or Underwriters participating in the disposition of those Registrable Securities, provided that so doing does not unreasonably interfere with the business of the Corporation and the out-of-pocket costs thereof are reimbursed to the Corporation.
(m) The Corporation may require the Registering Stockholder to promptly furnish in writing to the Corporation such information regarding the Registering Stockholder, the plan of distribution of the Registrable Securities and other information as the Corporation may from time to time reasonably request or as may be legally required in connection with such registration.
(n) The Corporation will (i) obtain a CUSIP number for the Registrable Securities, and (ii) from and after a date no later than the effective date of the registration statement, engage and cause to be maintained an appropriate transfer agent and registrar for all Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Teavana Holdings Inc)
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered pursuant to Section 2.2 hereofShareholder requests a Demand Registration, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable possible prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 and remain effective for a period of not less than 90 days; provided that if the Issuer Company shall furnish to the Holders making Shareholder a request pursuant to Section 2.2 a resolution of certificate signed by its Board of Directors Chairman, Chief Executive Officer or Chief Financial Officer stating that in their his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such filed, or, in the case of an effective registration and offering would materially interfere with any material financingstatement, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")for sales to be effected thereunder, the Issuer Company shall have a period of not more than 180 90 days within which to file such registration statement measured from the date of receipt of the notice is sent to the Holders request in accordance with Section 2.2 2.01 or, in the case of an effective registration statement, the Company shall be entitled to require Shareholder to refrain from selling Registrable Securities under such registration statement for a period of up to 90 days; provided further that, in the case of a registration statement that has been filed in connection with a Demand Registrationto be filed, the Issuer may cause Company shall be entitled to only one 90 day delay in any 360 day period, and, in the case of an effective registration statement, the Company shall be entitled to require Shareholder to refrain from selling Registrable Securities under such Registration Statement for an aggregate of 90 days in any 360 day period. 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 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 be withdrawn and its effectiveness terminated or may postpone amending or supplementing such the date when sales under the registration statement until such Valid Business Reason no longer existsmay recommence.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder Shareholder and each managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to Shareholder and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as Shareholder or such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement Shareholder of any stop order issued or or, to the knowledge of the Company, threatened to be issued by the Commission and take all reasonable necessary actions required to prevent the entry of such stop order or to remove it if entered.
(ed) The Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder Shareholder reasonably (in the light of such Selling HolderShareholder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequests; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (ed), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) generally consent to general service of process in any such jurisdiction.
(fe) The Issuer will Company shall, as promptly as practicable, notify each Selling Holder of such Registrable SecuritiesShareholder, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or the occurrence of any an event requiring the preparation of a supplement or amendment to such registration statement or prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such registration statement or 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 therein, in the light of the circumstances under which they were made, not misleading misleading, and as promptly as practicable make available to each Selling Holder Shareholder and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder Shareholder agrees that, upon receipt of any notice from the Issuer Company of the discovery of any condition or the happening of any event, in each case event of the kind described in Section 3.1(f) hereofthe preceding sentence, such Selling Holder Shareholder will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such Selling Holder Shareholder will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such Selling HolderShareholder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement shall be maintained effective (including the periods referred to as provided in Sections 3.1(aSection 3.01(a) and 3.1(b) hereof) hereof by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by Shareholder such registration statement a prospectus supplemented or amended prospectus.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form and satisfactory in form and substance to conform with the requirements 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 Shareholder and to each managing Underwriter, if any, a signed counterpart, addressed to Shareholder 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 3.1(f11(a) hereofof the 1933 Act.
(i) The Company will use its best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed. The Company may require Shareholder promptly to furnish in writing to the Company such information regarding Shareholder, 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 legally required in connection with such registration.
Appears in 1 contract
Samples: Investment Agreement (Morgan Stanley Dean Witter Discover & Co)
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered pursuant to Section 2.2 hereofStockholder requests a -------------------- Demand Registration, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable possible prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 and remain effective for a period of not less than 90 days; provided that if the Issuer Company shall furnish to the Holders making Stockholder a request pursuant to Section 2.2 a resolution of certificate signed by its Board of Directors Chairman, Chief Executive Officer or Chief Financial Officer stating that in their his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders stockholders for such a registration statement to be filed as expeditiously as practicable or that such filed, or, in the case of an effective registration and offering would materially interfere with any material financingstatement, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")for sales to be effected thereunder, the Issuer Company shall have a period of not more than 180 90 days within which to file such registration statement measured from the date of receipt of the notice is sent to the Holders request in accordance with Section 2.2 2.2.1 or, in the case of an effective registration statement, the Company shall be entitled to require Stockholder to refrain from selling Registrable Securities under such registration statement for a period of up to 90 days; provided further that, in the case of a registration statement that has been filed in connection with a Demand Registrationto be filed, the Issuer may cause Company shall be entitled to only one 90 day delay in any 360 day period, and, in the case of an effective registration statement, the Company shall be entitled to require Stockholder to refrain from selling Registrable Securities under such Registration Statement for an aggregate of 90 days in any 360 day period. 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 this Section 2.3.1
(a) hereof by the number of days during the period from and including the date of the giving of notice under this paragraph to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such the date when sales under the registration statement until such Valid Business Reason no longer existsmay recommence.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder Stockholder and each managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to Stockholder and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as Stockholder or such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement Stockholder of any stop order issued or or, to the knowledge of the Company, threatened to be issued by the Commission and take all reasonable necessary actions required to prevent the entry of such stop order or to remove it if entered.
(ed) The Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder Stockholder reasonably (in the light of such Selling HolderStockholder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequests; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (ed), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) generally consent to general service of process in any such jurisdiction.
(fe) The Issuer will Company shall, as promptly as practicable, notify each Selling Holder of such Registrable SecuritiesStockholder, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or the occurrence of any an event requiring the preparation of a supplement or amendment to such registration statement or prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such registration statement or 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 therein, in the light of the circumstances under which they were made, not misleading misleading, and as promptly as practicable make available to each Selling Holder Stockholder and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder Stockholder agrees that, upon receipt of any notice from the Issuer Company of the discovery of any condition or the happening of any event, in each case event of the kind described in Section 3.1(f) hereofthe preceding sentence, such Selling Holder Stockholder will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such Selling Holder Stockholder will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such Selling HolderStockholder's possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement shall be maintained effective as provided in Section 2.3.1
(including the periods referred to in Sections 3.1(aa) and 3.1(b) hereof) hereof by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by Stockholder such registration statement a prospectus supplemented or amended prospectus.
(f) The Company will enter into customary agreements (including an underwriting agreement in customary form and satisfactory in form and substance to conform with the requirements 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 Stockholder and to each managing Underwriter, if any, a signed counterpart, addressed to Stockholder 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 3.1(f11(a) hereofof the 1933 Act.
(i) The Company will use its best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed. The Company may require Stockholder promptly to furnish in writing to the Company such information regarding 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 legally required in connection with such registration.
Appears in 1 contract
Samples: Stockholder Rights Agreement (Catalytica Energy Systems Inc)
Filings; Information. Whenever Holders validly request First Reserve requests that any Registrable Securities be registered pursuant to Section 2.2 5.2(a) hereof, the Issuer Company will use its reasonable best efforts to effect the registration of such Registrable Securities and to permit the sale of such Registrable Securities in accordance with the intended method of disposition thereof thereof, as quickly promptly as is practicable, and in connection with any such request:
(ai) The Issuer the Company will as expeditiously as practicable possible, but in no event later than 30 days after receipt of a request to file a registration statement with respect to such Registrable Securities, prepare and file with the Commission SEC a registration statement Registration Statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 thereofthereof and which is reasonably satisfactory to First Reserve, and use its reasonable best efforts to cause such filed registration statement Registration Statement to become and remain effective for a period of not less than 90 daysdays (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold); provided that if at the Issuer shall furnish time the Company receives a request to file a Registration Statement with respect to Registrable Securities or thereafter, the Company is engaged in confidential negotiations or other confidential business activities, disclosure of which would be required in such Registration Statement or a related prospectus or supplement thereto (but would not be required if such Registration Statement were not filed) and the board of directors of the Company determines in good faith that such disclosure would be materially detrimental to the Holders making a request pursuant to Section 2.2 a resolution of Company and its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")stockholders, the Issuer Company shall have a period of not more than 180 120 days (less the number of days during the previous 12 months that the use of a Prospectus was suspended pursuant to Section 5.2(d)(vi) and/or this Section 5.2(d)(i)) within which to file such registration statement measured from the date of the notice is sent to the Holders Company's receipt of First Reserve's request for registration in accordance with Section 2.2 or, in the case 5.2(a) hereof or to file any supplement required by Section 5.2(d)(vi). The filing of a registration statement may only be deferred once for any potential transaction or event or related transactions or events that could arise as a result of negotiations or other activities and any registration statement whose filing has been deferred as a result shall be filed in connection with forthwith if the negotiations or other activities are disclosed or terminated. In order to defer the filing of a Demand Registrationregistration statement pursuant to this Section 5.2(d)(i), the Issuer may cause Company shall promptly, upon determining to seek such registration statement deferral, deliver to be withdrawn and its effectiveness terminated First Reserve a certificate signed by the President or may postpone amending or supplementing Chief Financial Officer of the Company stating that the Company is deferring such registration statement until such Valid Business Reason no longer existsfiling pursuant to this Section 5.2(d)(i).
(bii) The Issuer the Company will prepare and file with the Commission SEC such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for the period set forth in Section 5.2(d)(i) and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) all securities covered by such time as all of Registration Statement during such Registrable Securities and other securities have been disposed of period in accordance with the intended methods of disposition or otherwise by the Selling Holders sellers thereof set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementRegistration Statement.
(ciii) The Issuer the Company will, if requested, prior to filing a registration statement or prospectus Registration Statement or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder First Reserve and each Underwriterapplicable managing underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to First Reserve and each such Selling Holder and Underwriterunderwriter, if any, such number of copies of such registration statementRegistration Statement, each amendment and supplement 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 prospectusProspectus) and as First Reserve or each such other documents as such Selling Holder or Underwriter underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(div) After the filing of the registration statementRegistration Statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement First Reserve of any stop order issued or or, to the Company's knowledge, threatened to be issued by the Commission SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it as soon as possible if entered.
(ev) The Issuer the Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder First Reserve reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequests; provided that the Issuer Company 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 (esubparagraph 5.2(d)(v), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(fvi) The Issuer the Company will as promptly as is practicable notify each Selling Holder of such Registrable SecuritiesFirst Reserve, at any time when a prospectus relating thereto Prospectus is required by law to be delivered under the Securities Actin connection with sales by an underwriter or dealer, of the discovery of any condition or the occurrence of any event requiring the preparation of a supplement or amendment to such prospectus 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 not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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.Registrable
Appears in 1 contract
Samples: Shareholders Agreement (First Reserve Corp /Ct/ /Adv)
Filings; Information. Whenever Holders validly request that any the Company is required -------------------- to effect or cause the registration of Registrable Securities be registered pursuant to Section 2.2 hereof2.1, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable possible prepare and file with the Commission a registration statement Registration Statement on any form for which the Issuer Company then qualifies or which counsel for the Issuer 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 Registration Statement to become and remain effective for a period of not less than 90 120 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 if the Issuer shall furnish to Company -------- may postpone, not more than three (3) times during the Holders making a request pursuant to Section 2.2 a resolution of its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")Demand Right period, the Issuer shall have filing of a Registration Statement for a period of not more than 180 90 days within which to file such registration statement measured from the date of receipt of the notice is sent to the Holders request in accordance with Section 2.2 or2.1 if the Company reasonably determines that such a filing would adversely affect any proposed financing or acquisition by the Company which is material to the Company, in and furnishes to the case Investor a certificate signed by an executive officer of the Company to such effect. If the Company postpones the filing of a registration statement that has been filed Registration Statement, it shall promptly notify the Investor in connection with a Demand Registration, writing when the Issuer may cause events or circumstances permitting such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existspostponement have ended.
(b) The Issuer Company will as expeditiously as possible prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus Prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement continuously effective (subject to the 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 or the Demand Period has expired (but not before the expiration of the 90-day period referred to in Section 4(3) of the Securities Act and to Rule 174 thereunder, if applicable) and comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) all securities covered by such time as all of Registration Statement during such Registrable Securities and other securities have been disposed of period in accordance with the intended methods of disposition or otherwise by the each Selling Holders Holder thereof set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementRegistration Statement.
(c) The Issuer Company will, prior to filing a registration statement Registration Statement or prospectus or any amendment or supplement theretothereto (including documents that would be incorporated or deemed to be incorporated therein by reference), furnish copies of all such documents to each Selling Holder the Investor, counsel representing the Investor, and each Underwriter, if any, and their respective counselof the Registrable Securities covered by such Registration Statement copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents shall will be subject to the review and comment of such Selling Holder, Underwriter and counselby the foregoing within five days after delivery, and thereafter furnishfurnish to the Investor, without charge, to such Selling Holder counsel and Underwriter, if any, for their review and comment such number of copies of such registration statementRegistration 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) Registration Statement and such other documents or information as such Selling Holder the Investor, counsel or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialInvestor.
(d) After the filing of the registration statementRegistration Statement, the Issuer Company will promptly notify each Selling Holder the Investor, (i) when a Prospectus or any supplement thereto 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 Registrable Securities covered any request by such registration statement 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 issued suspending the effectiveness of a Registration Statement or threatened the initiation of any proceedings for that purpose, (iv) if at any time when a prospectus is required by the Commission Securities Act to be delivered in connection with sales of the Registrable Securities, the representations and take 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 reasonable actions 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 prevent be stated therein or necessary to make the entry statements therein not misleading, and that in the case of such stop order the Prospectus, it will not contain any untrue statement of a material fact required to be stated therein or necessary to remove it if enteredmake 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 Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder the Investor reasonably (in the light of such Selling Holderthe Investor's intended plan of distribution) requests requests, and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities in the United States as may be necessary to enable by virtue of the Selling Holders to consummate business and operations of the disposition of such Registrable Securities Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder the Investor to consummate the disposition of the Registrable Securities then owned by such Selling Holderthe Investor and the Permitted Transferee; provided that the Issuer -------- Company 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 (C) consent to general service of process in any such jurisdiction.
(f) The Issuer Company will promptly notify each Selling Holder take all reasonable actions required to prevent the entry, or obtain the withdrawal, of such any order suspending the effectiveness of a Registration Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any Registrable SecuritiesSecurities for sale in any jurisdiction, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or earliest moment.
(g) Upon the occurrence of any event requiring contemplated by paragraph 3.1(d)(vi) or 3.1(d)(vii) above, the preparation of Company will (i) prepare a supplement or post-effective amendment to such prospectus Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of such the Registrable SecuritiesSecurities being sold thereunder, such prospectus Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading misleading, and (ii) promptly make available to each Selling Holder the Investor any such supplement or amendment.
(gh) The Issuer Company will enter into customary agreements (including including, if applicable, an underwriting agreement in customary formform 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 SecuritiesSecurities (the Investor may, at his 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 the Investor).
(hi) The Issuer Company will make available to the Investor (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 or auditors and will also make available for inspection by any Selling Holderthe Investor, any Underwriter participating in any disposition pursuant to such registration statement Registration Statement and any attorney, accountant or other professional retained by any such Selling Holder the Investor or Underwriter (collectively, the "Inspectors")Underwriter, all financial and other records, pertinent corporate documents and properties of the Issuer Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the IssuerCompany's officers, directors officers and employees to supply all information reasonably requested by any Inspectors inspectors in connection with such registration statementRegistration Statement. Records which the Issuer 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 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 the securities of the Issuer Company or its Affiliates affiliates unless and until such information is made generally available to the public. Each Selling Holder of such Registrable Securities 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 Issuer Company and allow the IssuerCompany, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(ij) The Issuer Company will use reasonable best efforts furnish to cause to be furnished to each Selling Holder the Investor 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 Issuer Company, and (ii) a comfort letter or comfort letters from the IssuerCompany's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the Investor or the managing Underwriter therefor reasonably requests.
(k) In connection with an underwritten offering, the Company will participate, to the extent reasonably requested by the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best or the Investor, in customary efforts to comply with all applicable rules and regulations of sell the Commissionsecurities under the offering, and make available to its securityholdersincluding, as soon as reasonably practicablewithout limitation, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Actparticipating in "road shows.
(k) " The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer Company may require the Investor and each Selling Holder of Registrable Securities Permitted Transferee to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and the distribution of the Registrable Securities by the Investor and each Permitted Transferee as the Issuer Company may from time to time reasonably request and such other information as may be legally required in connection with such registrationregistration including, without limitation, all such information as may be requested by the Commission or the NASD. Each Selling The Company may exclude from such registration any Holder who fails to provide such information. The Investor and each Permitted Transferee agrees that, upon receipt of any notice from the Issuer Company of the discovery of any condition or the happening of any event, in each case event of the kind described in Section 3.1(fSections 3.1(d)(iii), (v), (vi) and (vii) hereof, such Selling Holder the Investor will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement Registration Statement covering such Registrable Securities until such Selling Holderthe Investor's receipt of the copies of the supplemented or amended prospectus Prospectus contemplated by Section 3.1(f3.1(g) hereof, and, if so directed by the IssuerCompany, such Selling Holder the Investor will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies copies, then in such Selling Holder's possession, possession of the most recent prospectus Prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement Registration Statement shall be maintained effective (including the periods period referred to in Sections Section 3.1(a) and 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(f3.1(d)(iii), (v), (vi) or (vii) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement Investor a prospectus Prospectus supplemented or amended to conform with the requirements of Section 3.1(f3.1(g) hereof. In connection with any registration of Registrable Securities pursuant to Section 2.2, the Company will take the actions contemplated by paragraphs (c), (d), (e), (g), (h), (i) and (j) above.
Appears in 1 contract
Samples: Registration Rights Agreement (Mariner Post Acute Network Inc)
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.2 hereof, the Issuer Corporation will use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Corporation will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Corporation then qualifies or and which counsel for the Issuer Corporation 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 commercially reasonable best efforts to cause such filed registration statement to become and remain effective for a period such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of not less than 90 dayssuch securities; provided that if the Issuer Corporation shall furnish to the Holders making Buyer a request pursuant to Section 2.2 a resolution of its Board of Directors certificate signed by the Corporation's Chairman, President or any Vice_President stating that in their his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Corporation or its shareholders for such a registration statement to be filed as expeditiously as practicable possible (because the sale of Registrable Securities covered by such Registration Statement or that such registration and offering the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason"Corporation), the Issuer shall have Corporation may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 days; provided, that during any 360 day period there shall be a period of at least 120 consecutive days within 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 file a Demand Registration would otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Corp(a) oration's fiscal year, and (ii) the Securities Act requires the Corporation to include audited financials as of the end of such fiscal year, the Corporation may delay the effectiveness of such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCorporation will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each the Selling Holder Holders, and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Selling Holders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Selling Holders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialHolders.
(dc) After the filing of the registration statement, the Issuer Corporation will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or 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 stop order or to remove it if entered.
(ed) The Issuer Corporation will use its commercially reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Corporation 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 (C) consent to general service of process in any such jurisdiction.
(fe) The Issuer Corporation will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder Holders, and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon Upon receipt of any notice from the Issuer of the discovery occurrence of any condition or the happening of any event, in each case event of the kind described in Section 3.1(f) hereofthe preceding sentence, such Selling Holder Holders will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such receipt by the Selling Holder's receipt Holders and the Underwriters of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCorporation, such the Selling Holder Holders will deliver to the Issuer (at the Issuer's expense) Corporation all copies, other than permanent file copies then in such the possession of Selling Holder's possessionHolders, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Corporation shall give such notice, the Issuer Corporation shall extend the period during which such registration statement shall be maintained effective (including the periods referred to as provided in Sections 3.1(a) and 3.1(b) hereof) Section hereof by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when the Issuer Corporation shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or 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 conform expedite or facilitate the sale of such Registrable Securities.
(g) At the request of any Underwriter in connection with an underwritten offering the requirements Corporation will use commercially reasonable efforts to cause to be furnished an opinion of counsel, addressed to the Underwriters, covering such customary matters as the managing Underwriter may reasonably request and a comfort letter or comfort letters from the Corporation's independent public accountants covering such customary matters as the managing Underwriter may reasonably request.
(h) The Corporation will make generally available to its security holders, 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 3.1(f11(a) hereofof the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Corporation will use its commercially reasonable efforts to 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 Registrable Securities and other information as the Corporation may from time to time reasonably request or as may be legally required in connection with such registration.
Appears in 1 contract
Filings; Information. Whenever Holders validly request any Holder requests that -------------------- any Registrable Securities be registered pursuant to a Demand Registration, or when any Minority Holder requests that any Registrable Securities be registered pursuant to Section 2.2 hereofa Minority Holder Demand Registration, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such requestand:
(a) The Issuer In connection with any Demand Registration request, the Company will as expeditiously as practicable possible prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or which counsel for the Issuer 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 and remain effective for a period until the earlier of not less than 90 days(i) one hundred eighty (180) days from the date such registration statement became effective or (ii) the date on which the sale of Registrable Securities has been completed; provided that that, if the Issuer Company -------- shall furnish to the Holders any Holder making a request pursuant to Section 2.2 2.1 a resolution of certificate signed by either its Board of Directors Chairman or the Vice Chairman stating that in their his good faith judgment it would be significantly disadvantageous to the Issuer or its shareholders Company for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")possible, the Issuer Company shall have a period of not more than 180 ninety (90) days within which to file such registration statement measured from the date of receipt of the notice is sent to the Holders request in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists2.1.
(b) The Issuer In connection with a Minority Holder Demand Registration request, the Company will as expeditiously as possible prepare and file with the Commission such amendments and supplements to such a registration statement and the prospectus used in connection therewith as may be necessary use its best efforts to keep cause such filed registration statement to become and remain effective and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) one hundred eighty (180) days from the date such time registration statement became effective or (ii) the date on which the sale of Registrable Securities has been completed; provided that, if the Company shall furnish to the Minority Holder -------- making such Minority Holder Demand Registration request 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 for such a registration statement to be filed as all expeditiously as possible, the Company shall have a period of not more than one hundred eighty (180) days within which to file such registration statement measured from the date of receipt of such Registrable Securities and other securities have been disposed of Minority Holder Demand Registration request in accordance with Section 2.3; provided further -------- ------- that the intended methods Company's right under this Section 3.1(b) to delay the filing of disposition or otherwise by the Selling Holders set forth in such a registration statement and (ii) 90 days, for a Minority Holder Demand Registration may only be exercised once in either case, after the initial effective date of such registration statementa 365-day period with respect to a specific Minority Holder.
(c) The Issuer Company will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder Holder, counsel representing the Selling Holders, and each Underwriter, if any, and their respective counselof the Registrable Securities covered by such registration statement, copies of such registration statement as proposed to be filed, together with exhibits thereto, which documents shall will be subject to the prompt review and comment of approval by the foregoing, and thereafter furnish to such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder counsel and Underwriter, if any, 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 as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential.
(d) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable 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 Issuer Company will use its reasonable best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities in the United States as may be necessary to enable by virtue of the Selling Holders to consummate business and operations of the disposition of such Registrable Securities Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holder; provided that the Issuer Company 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 (C) consent to general service of process in any such jurisdiction.
(f) The Issuer Company will promptly immediately notify each Selling Holder of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities 1933 Act, of the discovery of any condition or the occurrence of any 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 not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(g) The Issuer Company will enter into customary agreements (including 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 SecuritiesSecurities (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).
(h) The Issuer 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 make available for inspection by any Selling Holder, any Underwriter participating cooperate fully in any disposition offering of Registrable Securities pursuant to Section 2.1 hereof, including, without limitation, participation in meetings with potential investors and preparation of all materials for such registration statement and any attorney, accountant or other professional retained by any such Selling investors. With respect to a Minority Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably Demand Registration requested by any Inspectors TJX, Leeway or NYNEX or registration under Section 2.2 in connection with such registration statement. Records which the Issuer determinesTJX, in good faithLeeway or NYNEX participates, 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 Company will cooperate 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities facilitate an orderly distribution of the Issuer shares of TJX, Leeway or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort lettersNYNEX, as the case may be, and TJX, Leeway or NYNEX, as the managing Underwriter case may be, will advise the Company of its intentions with respect to any significant sale of Registrable Securities and (ii) the Company will make management available at the Company's offices or by telephone, upon reasonable notice and at reasonable times and for the offering reasonably requestsseller's representatives and a small number of potential purchasers and/or placement agents, for marketing and diligence discussions regarding the Company and its business.
(ji) The Issuer Company will otherwise use its reasonable best efforts deliver promptly to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 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 supplemented Commission and the Company, its counsel or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the Issuer, such Selling Holder will deliver auditors and all memoranda relating to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer shall make available to the Selling Holders of Registrable Securities covered by such registration statement a prospectus supplemented or amended to conform discussions with the requirements of Section 3.1(f) hereof.Commission or its staff with respect to the
Appears in 1 contract
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.2 hereof, the Issuer will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such requestArticle II:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 commercially reasonable best efforts to cause such filed registration statement to become and remain effective for a the period of not less than 90 daysprovided in Article II; provided that if the Issuer Company shall furnish to the Holders making a request pursuant to Section 2.2 a resolution of its certificate signed by the Company's Chairman, President or any Executive Vice-President or Vice-President stating that the Company's Board of Directors stating that has determined in their good faith judgment that it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders stockholders for such a registration statement to be filed as expeditiously as practicable of the date set forth in Article II because the disclosure of information in any related prospectus or that such registration and offering prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason")Company, the Issuer shall have 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 commercially reasonable efforts to permit a period of at least 180 consecutive days within during which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of Company will make a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsavailable under this Agreement.
(b) The Issuer will prepare Anything in this Agreement to the contrary notwithstanding, it is understood and agreed that the Company shall not be required to keep the Shelf Registration effective or useable for offers and sales of the Registrable Securities, file with a post effective amendment to the Commission such amendments and supplements to such 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; provided that under no circumstances may such postponement exceed 90 days from the date on which the Company notifies the Holders of such postponement, as provided hereafter. 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 3.1(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 used indicated in connection therewith as may be necessary such notice. The Company shall use its commercially reasonable efforts to keep permit sales of Registrable Securities on such shelf registration statement effective and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementfor at least 180 days during any 360-day period.
(c) The Issuer will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder and each Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder and Underwriter, if any, 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 as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential.
(d) After the filing of the shelf registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement the Holders of any stop order issued or 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 stop order or to remove it if entered.
(ed) The Issuer In addition to the requirements imposed on the Company elsewhere herein, the Company will use its commercially reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder the Holders reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in the light of which such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities registration statement is required to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable such Selling each Holder to consummate the disposition of the Registrable Securities owned by such Selling HolderHolder in such jurisdictions; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (eSection 3.1(d), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(e) The Company shall cause the Registrable Securities included in any registration statement to be (i) listed on each securities exchange, if any, on which similar securities issued by the Company are then listed, or (ii) authorized to be quoted and/or listed (to the extent applicable) on the Nasdaq National Market if the Registrable Securities so qualify.
(f) The Issuer will promptly notify each Selling Holder of such Registrable Securities, at any time Company shall during the period when a the prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or 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 promptly file all documents required to be stated therein or necessary to make filed with the statements therein not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer will make available for inspection by any Selling Holder, any Underwriter participating in any disposition Commission pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"Sections 13(a), all financial and other records13(c), pertinent corporate documents and properties of the Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 14 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a15(d) of the Securities Exchange Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer Company may require each Selling Holder of Registrable Securities the Holders promptly to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and Holders, the plan of distribution of the Registrable Securities and other information as the Issuer Company may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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: Registration Rights Agreement (U S Restaurant Properties Inc)
Filings; Information. Whenever Holders validly the Shareholders request that any Registrable Securities be registered pursuant to Section 2.2 2.01 hereof, the Issuer Company will use its all commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 all commercially reasonable best efforts to cause such filed registration statement to become and remain effective for a period of such period, not less than to exceed 90 days, as may be reasonably necessary to effect the sale of such securities; provided that if the Issuer Company shall furnish to the Holders making Participating Shareholders a request pursuant to Section 2.2 a resolution certificate signed by the Company's Chairman or President stating that in the good faith judgment of its the Company's Board of Directors stating that in their good faith judgment it would be disadvantageous seriously detrimental to the Issuer Company or its shareholders for such a registration statement to be filed or become effective as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")possible, the Issuer shall have Company may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 days within which (provided that the Company may not defer such filing pursuant to file this clause more than once in any 12 month period); and provided further that if (i) the effective date of any 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 the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financials as of the end of such fiscal year, the Company may delay the effectiveness of such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder the Participating Shareholders and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Participating Shareholders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Participating Shareholders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement the Participating Shareholders of any stop order issued or or, to the Company's knowledge, threatened to be issued by the Commission and take all commercially reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(ed) The Issuer Company will use its all commercially reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder the Participating Shareholders reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(d), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fe) The Issuer Company will as promptly as is practicable notify each Selling Holder of such Registrable Securitiesthe Participating Shareholders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each Selling Holder the Participating Shareholders and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon Upon receipt of any notice from the Issuer Company of the discovery occurrence of any condition or the happening of any event, in each case event of the kind described in Section 3.1(f) hereofthe preceding sentence, such Selling Holder the Participating Shareholders will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt by the Participating Shareholders and the Underwriters of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such Selling Holder the Participating Shareholders will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such Selling Holder's the Participating Shareholders' possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement shall be maintained effective (including the periods referred to as provided in Sections 3.1(aSection 3.01(a) and 3.1(b) hereof) hereof by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by Participating Shareholders such registration statement a prospectus 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 required in order to conform expedite or facilitate the sale of such Registrable Securities.
(g) At the request of any Underwriter in connection with an underwritten offering, the requirements 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.
(h) The Company will make generally available to its security holders, 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 3.1(f11(a) hereofof the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will use all commercially reasonable efforts to cause all such Registrable Securities 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 the Participating Shareholders promptly to furnish in writing to the Company such information regarding the Participating Shareholders, 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 legally required in connection with such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Commonwealth Telephone Enterprises Inc /New/)
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.1, Section 2.2 and Section 2.3 hereof, the Issuer Company will use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission SEC a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 commercially reasonable best efforts to cause such filed registration statement to become and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for a period of such period, not less than to exceed 90 days, as may be reasonably necessary to effect the sale of such securities, (ii) with respect to a Shelf Registration, until the earliest of (A) the second anniversary of the date on which the SEC declares the Shelf Registration effective, (B) the first anniversary of the date on which the Initial Holder ceases to be an Affiliate, or (C) the date on which there are no longer any Registrable Securities covered by the Shelf Registration; provided that if the Issuer Company shall furnish to the Holders making Selling Holder a request pursuant to Section 2.2 a resolution of its certificate signed by the Company's Chairman, President or any Executive Vice-President or Vice-President stating that the Company's Board of Directors stating that has determined in their good faith judgment that it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders stockholders for such a registration statement to be filed as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving possible because the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"), the Issuer shall have a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer will, prior to filing a registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder and each Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counsel, and thereafter furnish, without charge, to such Selling Holder and Underwriter, if any, 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 as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential.
(d) After the filing of the registration statement, the Issuer will promptly notify each Selling Holder sale of Registrable Securities covered by such registration statement or the disclosure of information in any stop order issued related prospectus or threatened by prospectus supplement would materially interfere with any acquisition, financing or other material event or transaction which is then intended or the Commission and take all 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 commercially reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(e) The Issuer will 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) register or qualify the Registrable Securities under such other securities or blue sky laws effective date of such jurisdictions in any registration statement filed pursuant to a Demand Registration would otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the United States as any Selling Holder reasonably (in end of the light of such Selling HolderCompany's intended plan of distribution) requests fiscal year, and (ii) cause the Securities Act requires the Company to include audited financials as of the end of such Registrable Securities to be registered with or approved by fiscal year, the Company may delay the effectiveness of such other federal and state governmental agencies or authorities registration statement for such period as may be is reasonably necessary to enable include therein its audited financial statements for such fiscal year. If the Selling Company exercises its right to postpone the filing or effectiveness of a registration statement, the applicable Requesting Holders shall be entitled to consummate withdraw their request for such Demand Registration and it shall not count as a Demand Registration.
(b) Anything in this Agreement to the disposition of such Registrable Securities contrary notwithstanding, it is understood and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holder; provided agreed that the Issuer will Company shall not be required to (A) qualify generally to do business in keep any jurisdiction where it would not otherwise be required to qualify but shelf registration effective or useable for this paragraph (e), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service offers and sales of process in any such jurisdiction.
(f) The Issuer will promptly notify each Selling Holder of such the Registrable Securities, at any time when file a prospectus relating thereto is required to be delivered under the Securities Act, of the discovery of any condition or the occurrence of any event requiring the preparation of a supplement or post effective 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 not misleading and promptly make available to each Selling Holder any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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: Registration Rights Agreement (Miller Scott Dennis)
Filings; Information. Whenever Holders validly request that any Registrable Securities be registered In connection with a Demand Registration pursuant to Section 2.2 2.01 hereof, the Issuer Corporation will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Corporation will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Corporation then qualifies or and which counsel for the Issuer Corporation 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 and remain effective for a period such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of not less than 90 dayssuch securities; provided that if the Issuer Corporation shall furnish to Buyer a certificate signed by the Holders making a request pursuant to Section 2.2 a resolution of its Board of Directors Corporation's Chairman, President or any Vice-President stating that in their his or her good faith judgment it would be detrimental or otherwise disadvantageous to the Issuer Corporation or its shareholders for such a registration statement to be filed as expeditiously as practicable possible (because the sale of Registrable Securities covered by such Registration Statement or that such registration and offering the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason"Corporation), the Issuer shall have Corporation may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 days; provided, that during any 360 day period there shall be a period of at least 120 consecutive days within 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 file a Demand Registration would otherwise be at least 45 calendar days, but fewer than 90 calendar days, after the end of the Corporation's fiscal year, and (ii) the Securities Act requires the Corporation to include audited financials as of the end of such fiscal year, the Corporation may delay the effectiveness of such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCorporation will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each the Selling Holder Holders, and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Selling Holders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Selling Holders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialHolders.
(dc) After the filing of the registration statement, the Issuer Corporation will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or 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 stop order or to remove it if entered.
(ed) The Issuer Corporation will use its reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Corporation will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(d), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fe) The Issuer Corporation will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder 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 amended 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 most recent prospectus covering such Registrable Securities at the time of 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 number of days during the period from and including the date of the giving of such notice to the date when the Corporation shall make available to the Selling Holders such supplemented or amended prospectus.
(gf) The Issuer 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 facilitate the disposition sale of such Registrable Securities.
(hg) The Issuer will make available for inspection by any Selling Holder, At the request of 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which an underwritten offering the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer Corporation will use reasonable best efforts to cause to be furnished to each Selling Holder and to each Underwriter, if any, a signed counterpart, addressed to such Selling Holder or Underwriter, of furnish (i) an opinion or opinions of counsel counsel, addressed to the Issuer Underwriters, covering such customary matters as the managing Underwriter may reasonably request and (ii) a comfort letter or comfort letters from the IssuerCorporation's independent public accountants, each in customary form and accountants covering such customary matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering may reasonably requestsrequest.
(jh) The Issuer Corporation will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities ActAct and the rules and regulations of the Commission thereunder.
(ki) The Issuer Corporation will use its commercially reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or quoted on each inter-dealer automated quotation system on which similar securities issued by the Issuer are Common Stock is then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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
Filings; Information. Whenever Holders validly request that any the Company is required to effect or cause the registration of Registrable Securities be registered pursuant to Section 2.2 hereof2.1, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly as practicable, and in connection with any such request:
(a) The Issuer Company promptly will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which Registration Statement with respect to the Issuer then qualifies or which counsel for the Issuer shall deem appropriate offer 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, such securities and use its reasonable best efforts to cause such filed registration statement Registration Statement to become 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 a more than 120 days (or such shorter period of which will terminate when all Registrable Securities covered by such Registration Statement have been sold, but not less than 90 days; provided that if the Issuer shall furnish prior to the Holders making a request pursuant expiration of the applicable period referred to in Section 2.2 a resolution 4(3) of its Board of Directors stating that in their good faith judgment it would be disadvantageous to the Issuer or its shareholders for such a registration statement to be filed as expeditiously as practicable or that such registration Securities Act and offering would materially interfere with any material financingRule 174 thereunder, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason"if applicable), the Issuer shall have a period of not more than 180 days within which to file such registration statement measured from the date the notice is sent to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.
(b) The Issuer Company will promptly prepare and file with the Commission such amendments and supplements post-effective amendments to such registration statement and the prospectus used in connection therewith Registration Statement as may be necessary to keep such Registration Statement effective for as long as such registration statement is required to remain effective pursuant to the 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 Securities Act; and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by provisions of the Securities Act or applicable to it with respect to the rules and regulations promulgated thereunder, until the earlier disposition of (i) such time as all of such Registrable Securities and other securities have been disposed of covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after Registration Statement or supplement to the initial effective date of such registration statementprospectus.
(c) The Issuer willCompany, at least ten (10) days prior to filing a registration statement Registration Statement or at least five (5) days prior to filing a prospectus or any amendment or supplement theretoto such Registration Statement or prospectus, will furnish copies of all such documents to (i) each Selling Holder 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 their respective counselof the Registrable Securities covered by such Registration Statement copies of such Registration Statement as proposed to be filed, together with exhibits thereto, which documents shall will be subject to the review and comment (and approval, in the case of the “selling stockholder” portion thereof, which approval may not be unreasonably withheld) by each of the foregoing within five (5) days after delivery (except that such Selling Holder, Underwriter review and counselapproval of any prospectus or any amendment or supplement to such Registration Statement or prospectus must be within three (3) days after delivery), and thereafter furnishthereafter, without charge, furnish to such Selling Holder Holders, counsel and UnderwriterUnderwriters, if any, for their review and comment such number of copies of such registration statementRegistration 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 Registration Statement (including each preliminary prospectus) and such other documents or information as such Selling Holder Holders, counsel or Underwriter Underwriters 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 Selling Holder. The information contained in opportunity to review such documents are confidential shall not be disclosed by prior to filing consistent with the time constraints involved in filing such Selling Holder unless document, but in any event no less than one (i1) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialday.
(d) After the filing of the registration statement, the Issuer The Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement (and in any event within twenty-four (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) The Issuer On or prior to the date on which the Registration Statement is declared effective by the Commission, the Company will use its all reasonable best efforts to (i) register or qualify the Registrable Securities under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's ’s intended plan of distribution) requests requests, and (ii) cause file documents required to register such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities in the United States as may be necessary to enable by virtue of the Selling Holders to consummate business and operations of the disposition of such Registrable Securities Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holder; provided that the Issuer Company 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 (C) consent to general service of process in any such jurisdiction.
(f) The Issuer Company will promptly notify each Selling Holder of Holder, Selling Holders’ counsel and any Underwriter promptly and (if requested by any such Registrable SecuritiesPerson) confirm such notice in writing, at any time (i) when a prospectus relating thereto is required 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 delivered under the Securities Actincluded in any Registration Statement or prospectus or otherwise, (iii) of the discovery issuance by the Commission of any condition stop order suspending the effectiveness of a Registration Statement or the occurrence initiation or threatening of any proceedings for that purpose, (iv) of the issuance by any state securities commission or other regulatory authority of any order suspending the qualification or 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 requiring which makes any statement made in a Registration Statement or related prospectus or any document incorporated or deemed to be incorporated by reference therein untrue or which requires the preparation making of a supplement any changes in such Registration Statement, prospectus or amendment to such prospectus documents so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus that they will not contain an 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 Registration Statement and prospectus not misleading in light of the circumstances in which they were made; and, as promptly as practicable thereafter, subject to Section 7.2 hereof, prepare and promptly file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter deliverable to the purchasers 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 available to each the statements therein, in light of the circumstances under which they were made, not misleading. Each Selling Holder hereby agrees to keep any disclosures under subsection (v) above confidential until such time as a supplement or amendmentamendment is filed.
(g) The Issuer Company will make generally available an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than ninety (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) 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 including, if applicable, an underwriting agreement in customary formform 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.
(hj) The Issuer Company, during the period when the prospectus is required to be delivered under the Securities Act, promptly will make available for inspection by any Selling Holder, any Underwriter participating in any disposition file all documents required to be filed with the Commission pursuant to such registration statement and any attorney, accountant or other professional retained by any such Selling Holder or Underwriter (collectively, the "Inspectors"Section 13(a), all financial and other records13(c), pertinent corporate documents and properties 14 or 15(d) of the Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.Exchange Act
(ik) The Issuer Company will use all reasonable best efforts to cause to be furnished obtain and 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 the Company’s counsel to the Issuer and (ii) a cold comfort letter or comfort letters from the Issuer's Company’s independent public accountants, each accountants in customary form forms and covering such matters of the type customarily covered by such opinions of counsel or and cold comfort letters, letters as the case Selling Holders may be, as the managing Underwriter for the offering reasonably requestsrequest.
(jl) The Issuer will Company shall cause all such Registrable Securities registered pursuant hereunder to be listed on each securities exchange on which similar securities of the same class issued by the Company are then listed.
(m) The Company shall provide a transfer agent and registrar for all Registrable Securities registered pursuant to such Registration Statement and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration.
(n) The Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer Company may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer Company may from time to time reasonably request and such other information as may be legally required in connection with such registrationregistration including, without limitation, all such information as may be requested by the Commission 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 Issuer Company of the discovery of any condition or the happening of any event, in each case 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 Registration Statement covering such Registrable Securities until such Selling Holder's ’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such Selling Holder will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such Selling Holder's ’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement Registration Statement shall be maintained effective (including the periods period referred to in Sections Section 3.1(a) and 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 Issuer Company shall make available to the Selling Holders of Registrable Securities covered by such registration statement Registration Statement a prospectus supplemented or amended to conform with the requirements of Section 3.1(f) hereof.
Appears in 1 contract
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.1, Section 2.2 and Section 2.3 hereof, the Issuer Company will use its ----------- ----------- ----------- commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission SEC a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 commercially reasonable best efforts to cause such filed registration statement to become and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for a period of such period, not less than to exceed 90 days, as may be reasonably necessary to effect the sale of such securities, (ii) with respect to a Shelf Registration, until the earliest of (A) the second anniversary of the date on which the SEC declares the Shelf Registration effective, (B) the first anniversary of the date on which the Initial Holder ceases to be an Affiliate, or (C) the date on which there are no longer any Registrable Securities covered by the Shelf Registration; provided -------- that if the Issuer Company shall furnish to the Holders making Selling Holder a request pursuant to Section 2.2 a resolution of its certificate signed by ---- the Company's Chairman, President or any Executive Vice-President or Vice- President stating that the Company's Board of Directors stating that has determined in their good faith judgment that it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders stockholders for such a registration statement to be filed as expeditiously as practicable or that possible because the sale of Registrable Securities covered by such registration and offering statement or the disclosure of information in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason")Company, the Issuer shall have 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 commercially reasonable ---- efforts to permit a period of at least 180 consecutive days within 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 file a Demand Registration 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 financials as of the end of such fiscal year, the Company may delay the effectiveness of such registration statement measured from for such period as is reasonably necessary to include therein its audited financial statements for such fiscal year. If the date Company exercises its right to postpone the notice is sent to the Holders in accordance with Section 2.2 or, in the case filing or effectiveness of a registration statement that has been filed in connection with 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, the Issuer may cause such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer exists.
(b) The Issuer will prepare 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 with the Commission such amendments and supplements a post effective amendment to such 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; provided that under no circumstances may such postponement exceed 90 days from -------- ---- the date on which the Company notifies the Holders of such postponement, as provided hereafter. 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 3.1(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 used indicated in connection therewith as may be necessary such notice. The Company shall use commercially reasonable efforts to keep 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 and to comply with the registration form utilized as provided in Section 3.1(a) hereof by the Issuer or by number of days during the instructions applicable period from -------------- and including the date of the giving of such notice to the date when the Company shall give notice to the Selling Holders that such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all dispositions of such Registrable Securities may continue and other securities shall have been disposed of in accordance with the intended methods of disposition or otherwise by made available to the Selling Holders set forth in any such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementsupplemented or amended prospectus.
(c) The Issuer Company will, if requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each the Selling Holder Holders, and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Selling Holders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Selling Holders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialHolders.
(d) After the filing of the registration statement, the Issuer Company will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or or, to the Company's knowledge, threatened to be issued by the Commission SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(e) The Issuer In addition to the requirements imposed on the Company elsewhere herein, the Company will use its commercially reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to consummate the disposition of such Registrable Securities be kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable such each Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling HolderHolder in such jurisdictions; provided that the Issuer Company will not be required to -------- ---- (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (eSection 3.1(e), (Bii) subject -------------- itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(f) The Issuer Company will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder 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. 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 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.
(g) The Issuer Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions (including, without limitation, participation in investor conference calls) as are reasonably required in order to expedite or facilitate the disposition 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 Issuer will Company shall promptly make available for inspection by any Selling Holder, any Holder or Underwriter participating in any disposition pursuant to such any registration statement statement, and any attorney, accountant or other professional 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 Issuer Company (collectively, the "Records") ), as shall ------- be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the IssuerCompany's officers, directors and employees to supply all information reasonably requested by any Inspectors such Inspector in connection with such registration statement. Records which the Issuer determines; provided, in good faithhowever, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors that unless (i) the disclosure of such -------- ------- Records is necessary to avoid or correct a misstatement or omission in such the 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 inspections shall be deemed confidential and , the Company shall not be used by it as required to provide any information under this subparagraph (j) if (A) the basis Company believes, after consultation with counsel for any market transactions in the securities of Company, that to do so would cause the Issuer or its Affiliates unless and until Company to forfeit an attorney-client privilege that was applicable to such information is made generally available or (B) if either (1) the Company has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC 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 the public. Each Selling furnishing any such information with respect to (A) or (B) such Holder of such Registrable Securities further 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 Issuer Company and allow the IssuerCompany, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(ik) The Issuer will use reasonable best efforts to Company shall cause the Registrable Securities included in any registration statement to be furnished (A) listed on each securities 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.
(l) The Company shall provide a CUSIP number for the Registrable Securities included in any registration statement not later than the effective date of such registration statement.
(m) The Company shall cooperate with each Selling Holder and each Underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to each Underwriterbe made with the National Association of Securities Dealers, if any, a signed counterpart, addressed to such Selling Holder Inc.
(n) The Company shall participate in any financial roadshow organized for purposes of publicizing the sale or Underwriter, of (i) an opinion or opinions of counsel to the Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters other disposition of the type customarily covered Registrable Securities. Such participation shall include, but not be limited to, dispatch by opinions the Company of counsel or comfort letterspersonnel to assist in each presentation made during the roadshow, as and provision of Company data needed for purposes of the case may be, as the managing Underwriter for the offering reasonably requestsroadshow.
(jo) The Issuer will otherwise use its reasonable best efforts Company shall, during the period when the prospectus is required to comply be delivered under the Securities Act, promptly file all documents required to be filed with all applicable rules and regulations the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Commission, and Exchange Act.
(p) The Company will make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing twelve months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by Act and the Issuer are then listed or quotedrules and regulations of the SEC thereunder. The Issuer Company may require each Selling Holder of Registrable Securities Holders promptly to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and Holders, the plan of distribution of the Registrable Securities and other information as the Issuer Company may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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
Filings; Information. Whenever Holders validly the Shareholders request that any Registrable Securities be registered pursuant to Section 2.2 2.1 hereof, the Issuer Company will use its all commercially reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 all commercially reasonable best efforts to cause such filed registration statement to become and remain effective for a period of such period, not less than to exceed 90 days, as may be reasonably necessary to effect the sale of such securities; provided that if the Issuer Company shall furnish to the Holders making Participating Shareholders a request pursuant to Section 2.2 a resolution certificate signed by the Company's Chairman or President stating that in the good faith judgment of its the Company's Board of Directors stating that in their good faith judgment it would be disadvantageous seriously detrimental to the Issuer Company or its shareholders for such a registration statement to be filed or become effective as expeditiously as practicable or that such registration and offering would materially interfere with any material financing, corporate reorganization or other material transaction involving the Issuer or any of its subsidiaries, or would require premature disclosure thereof, and promptly gives the Holders making such request written notice that such determination has been made (a "Valid Business Reason")possible, the Issuer shall have Company may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 days within which (provided that the Company may not defer such filing pursuant to file this clause more than once in any 12 month period); and provided further that if (i) the effective date of any 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 the Company's fiscal year, and (ii) the Securities Act requires the Company to include audited financials as of the end of such fiscal year, the Company may delay the effectiveness of such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare and file with the Commission 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 and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunderCompany will, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statement.
(c) The Issuer willif requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each Selling Holder the Participating Shareholders and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Participating Shareholders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Participating Shareholders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialSecurities.
(dc) After the filing of the registration statement, the Issuer Company will promptly notify each Selling Holder of Registrable Securities covered by such registration statement the Participating Shareholders of any stop order issued or or, to the Company's knowledge, threatened to be issued by the Commission and take all commercially reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(ed) The Issuer Company will use its all commercially reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder the Participating Shareholders reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders to consummate the disposition of such Registrable Securities and do any and all other acts and things that may be reasonably necessary or advisable to enable such Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling Holderrequest; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.1(d), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(fe) The Issuer Company will as promptly as is practicable notify each Selling Holder of such Registrable Securitiesthe Participating Shareholders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each Selling Holder the Participating Shareholders and to the Underwriters any such supplement or amendment.
(g) 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 disposition of such Registrable Securities.
(h) The Issuer 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 Issuer (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Issuer's officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such registration statement. Records which the Issuer 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(i) The Issuer will use reasonable best efforts to cause to be furnished 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 Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requests.
(j) The Issuer will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to its securityholders, as soon as reasonably practicable, an earnings statement covering the first fiscal year of the Issuer commencing after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act.
(k) The Issuer will use its reasonable best efforts to cause all such Registrable Securities to be listed or quoted on each securities exchange or inter-dealer automated quotation system on which similar securities issued by the Issuer are then listed or quoted. The Issuer may require each Selling Holder of Registrable Securities to promptly furnish in writing to the Issuer such information regarding such Selling Holder and the distribution of the Registrable Securities as the Issuer may from time to time reasonably request and such other information as may be legally required in connection with such registration. Each Selling Holder agrees that, upon Upon receipt of any notice from the Issuer Company of the discovery occurrence of any condition or the happening of any event, in each case event of the kind described in Section 3.1(f) hereofthe preceding sentence, such Selling Holder the Participating Shareholders will forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Selling Holder's receipt by the Participating Shareholders and the Underwriters of the copies of the such supplemented or amended prospectus contemplated by Section 3.1(f) hereof, and, if so directed by the IssuerCompany, such Selling Holder the Participating Shareholders will deliver to the Issuer (at the Issuer's expense) Company all copies, other than permanent file copies then in such Selling Holder's the Participating Shareholders' possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice. In the event the Issuer Company shall give such notice, the Issuer Company shall extend the period during which such registration statement shall be maintained effective (including the periods referred to as provided in Sections Section 3.1(a) and 3.1(b) hereof) hereof by the number of days during the period from and including the date of the giving of such notice pursuant to Section 3.1(f) hereof to the date when the Issuer Company shall make available to the Selling Holders of Registrable Securities covered by Participating Shareholders such registration statement a prospectus 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 required in order to conform expedite or facilitate the sale of such Registrable Securities.
(g) At the request of any Underwriter in connection with an underwritten offering, the requirements 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.
(h) The Company will make generally available to its security holders, 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 3.1(f11(a) hereofof the Securities Act and the rules and regulations of the Commission thereunder.
(i) The Company will use all commercially reasonable efforts to cause all such Registrable Securities 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 the Participating Shareholders promptly to furnish in writing to the Company such information regarding the Participating Shareholders, 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 legally required in connection with such registration.
Appears in 1 contract
Samples: Registration Rights Agreement (Kiewit Telecom Holdings Inc)
Filings; Information. Whenever Holders validly request that any In connec tion with the registration of Registrable Securities be registered pursuant to Section 2.2 2.01, Section 2.02 and Section 2.03 hereof, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer Company shall deem appropriate and which form shall be available for the sale of the Registrable Securities to be registered thereunder there under in accordance with the intended method of distribution thereof, and use its reasonable best efforts to cause such filed registration statement to become and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for a period such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of not less than 90 dayssuch securi ties, (ii) with respect to the Initial Shelf Registration, until the earlier of the sale of all Registrable Securities thereunder and the Fifth Anniversary and (iii) with respect to the Second 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 Issuer Company shall furnish to the Holders making Selling Holder a request pursuant to Section 2.2 a resolution of its certificate signed by the Company's Chairman, President or any Vice-President stating that the Company's Board of Directors stating that has determined in their good faith judgment that it would be disadvantageous detrimental or otherwise dis advantageous to the Issuer Company or its shareholders for such a registration statement to be filed as expeditiously as practicable possible because the sale of Registrable Securities covered by such Registration Statement or that such registration and offering the disclosure of informa tion in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason")Company, the Issuer shall have Company may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 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 within 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 file a Demand Registration 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 financials as of the end of such fiscal year, the Company may delay the effectiveness of such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare 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 with the Commission such amendments and supplements a post effective amendment to such 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 used indicated in connection therewith as may be necessary such notice. The Company shall use its reasonable best efforts to keep permit sales of Registrable Securities on such shelf registration statement effective and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementfor at least 120 days during any 360- day period.
(c) The Issuer Company will, if requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each the Selling Holder Holders, and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Selling Holders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Selling Holders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialHolders.
(d) After the filing of the registration statement, the Issuer Company will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or 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 stop order or to remove it if entered.
(e) The Issuer Company will use its reasonable best commercially reason able efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to consummate the disposition of such Registrable Securities be kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable such each Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling HolderHolder in such jurisdictions; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(e), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(f) The Issuer Company will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder 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 3.01(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.
(g) The Issuer 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 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 Issuer will Company shall promptly make available for inspection by any Selling Holder, any Holder or Underwriter participating in any disposition pursuant to such any registration statement statement, and any attorney, accountant or other professional 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 Issuer Company (collectively, the "Records") ), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the IssuerCompany's officers, directors and employees to supply all information reasonably requested by any Inspectors such Inspector in connection with such registration statement. Records which the Issuer determines; provided, in good faithhowever, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors that unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such the 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 inspections shall be deemed confidential and , the Company shall not be used by it as required to provide any information under this subparagraph (j) if (A) the basis Company believes, after consultation with counsel for any market transactions in the securities of Company, that to do so would cause the Issuer or its Affiliates unless and until Company to forfeit an attorney-client privilege that was applicable to such information is made generally available 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 the public. Each Selling furnishing any such information with respect to (A) or (B) such Holder of such Registrable Securities further 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 Issuer Company and allow the IssuerCompany, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(ik) The Issuer will use reasonable best efforts to Company shall cause the Registrable Securities included in any registration statement to be furnished (A) listed on each securities 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.
(l) The Company shall provide a CUSIP number for the Registrable Securities included in any registration statement not later than the effective date of such registration statement.
(m) The Company shall cooperate with each Selling Holder and each Underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to each Underwriterbe made with the National Association of Securities Dealers, if anyInc.
(n) The Company shall during the period when the prospectus is required to be delivered under the Securities Act, a signed counterpartpromptly file all documents required to be filed with the Commission pursuant to Sections 13(a), addressed to such Selling Holder 13(c), 14 or Underwriter, of (i15(d) an opinion or opinions of counsel to the Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requestsExchange Act.
(jo) The Issuer Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities ActAct and the rules and regulations of the Commission thereunder.
(kp) The Issuer Company will use its commercially reasonable best efforts to cause all such Registrable Securities Common Stock and, in the event of a public offering of Series A Preferred Stock, the Series A Preferred Stock (subject to applicable listing requirements) to be listed or quoted on each securities exchange or quoted on each inter-dealer automated quotation system on which similar securities issued by the Issuer are Common Stock is then listed or quoted. The Issuer Company may require each Selling Holder of Registrable Securities Holders promptly to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and Holders, the plan of distribution of the Registrable Securities and other information as the Issuer Company may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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
Filings; Information. Whenever Holders validly request that any In connection with the registration of Registrable Securities be registered pursuant to Section 2.2 2.01, Section 2.02 and Section 2.03 hereof, the Issuer Company will use its reasonable best efforts to effect the registration and the sale of such Registrable Securities in accordance with the intended method of disposition thereof as quickly promptly as is reasonably practicable, and in connection with any such request:
(a) The Issuer Company will as expeditiously as practicable prepare and file with the Commission a registration statement on any form for which the Issuer Company then qualifies or and which counsel for the Issuer 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 and remain effective (i) with respect to any Demand Registration or Piggyback Registration, for a period such period, not to exceed 60 days, as may be reasonably necessary to effect the sale of not less than 90 dayssuch securities, (ii) with respect to the Initial Shelf Registration, until the earlier of the sale of all Registrable Securities thereunder and the Fifth Anniversary and (iii) with respect to the Second 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 Issuer Company shall furnish to the Holders making Selling Holder a request pursuant to Section 2.2 a resolution of its certificate signed by the Company's Chairman, President or any Vice-President stating that the Company's Board of Directors stating that has determined in their good faith judgment that it would be detrimental or otherwise disadvantageous to the Issuer Company or its shareholders for such a registration statement to be filed as expeditiously as practicable possible because the sale of Registrable Securities covered by such Registration Statement or that such registration and offering the disclosure of informa- tion in any related prospectus or prospectus supplement would materially interfere with any material financingacquisition, corporate reorganization financing or other material event or transaction involving which is then intended or the Issuer or any public disclosure of its subsidiaries, or which at the time would require premature disclosure thereof, and promptly gives be materially prejudicial to the Holders making such request written notice that such determination has been made (a "Valid Business Reason")Company, the Issuer shall have Company may postpone the filing or effectiveness of a registration statement for a period of not more than 180 120 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 within 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 file a Demand Registration 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 financials as of the end of such fiscal year, the Company may delay the effectiveness of such registration statement measured from the date the notice for such period as is sent reasonably necessary to the Holders in accordance with Section 2.2 or, in the case of a registration statement that has been filed in connection with a Demand Registration, the Issuer may cause include therein its audited financial statements for such registration statement to be withdrawn and its effectiveness terminated or may postpone amending or supplementing such registration statement until such Valid Business Reason no longer existsfiscal year.
(b) The Issuer will prepare 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 with the Commission such amendments and supplements a post effective amendment to such 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 used indicated in connection therewith as may be necessary such notice. The Company shall use its reasonable best efforts to keep permit sales of Registrable Securities on such shelf registration statement effective and to comply with the registration form utilized by the Issuer or by the instructions applicable to such registration form or by the Securities Act or the rules and regulations promulgated thereunder, until the earlier of (i) such time as all of such Registrable Securities and other securities have been disposed of in accordance with the intended methods of disposition or otherwise by the Selling Holders set forth in such registration statement and (ii) 90 days, in either case, after the initial effective date of such registration statementfor at least 120 days during any 360-day period.
(c) The Issuer Company will, if requested, prior to filing a such registration statement or prospectus or any amendment or supplement thereto, furnish copies of all such documents to each the Selling Holder Holders, and each applicable managing Underwriter, if any, and their respective counsel, which documents shall be subject to the review and comment of such Selling Holder, Underwriter and counselcopies thereof, and thereafter furnish, without charge, furnish to the Selling Holders and each such Selling Holder and Underwriter, if any, 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), ) and the prospectus included in such registration statement (including each preliminary prospectus) and as the Selling Holders or each such other documents as such Selling Holder or Underwriter may reasonably request in order to facilitate the disposition sale of the Registrable Securities owned by such the Selling Holder. The information contained in such documents are confidential shall not be disclosed by such Selling Holder unless (i) the disclosure of such information is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such information 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 inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Issuer or its Affiliates unless and until such information 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 information is sought in a court of competent jurisdiction, give notice to the Issuer and allow the Issuer, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidentialHolders.
(d) After the filing of the registration statement, the Issuer Company will promptly notify each the Selling Holder of Registrable Securities covered by such registration statement Holders of any stop order issued or 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 stop order or to remove it if entered.
(e) The Issuer Company will use its commercially reasonable best efforts to (i) register or qualify the Registrable Securities for offer and sale under such other securities or blue sky laws of such jurisdictions in the United States as any Selling Holder reasonably (in the light of such Selling Holder's intended plan of distribution) requests and (ii) cause such Registrable Securities to be registered with or approved by such other federal and state governmental agencies or authorities as may be necessary to enable the Selling Holders reasonably request; keep each such registration or qualification (or exemption therefrom) effective during the period in which such registration statement is required to consummate the disposition of such Registrable Securities be kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable such each Selling Holder to consummate the disposition of the Registrable Securities owned by such Selling HolderHolder in such jurisdictions; provided that the Issuer Company will not be required to (Ai) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (e3.01(e), (Bii) subject itself to taxation in any such jurisdiction or (Ciii) consent to general service of process in any such jurisdiction.
(f) The Issuer Company will as promptly as is practicable notify each the Selling Holder of such Registrable SecuritiesHolders, at any time when a prospectus relating thereto to the sale of the Registrable Securities is required by law to be delivered under the Securities Actin connection with sales by an Underwriter or dealer, of the discovery of any condition or 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 therein, in the light of the circumstances under which they were made, not misleading and promptly make available to each the Selling Holder 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 3.01(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.
(g) The Issuer 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 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 Issuer will Company shall promptly make available for inspection by any Selling Holder, any Holder or Underwriter participating in any disposition pursuant to such any registration statement statement, and any attorney, accountant or other professional 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 Issuer Company (collectively, the "Records") ), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the IssuerCompany's officers, directors and employees to supply all information reasonably requested by any Inspectors such Inspector in connection with such registration statement. Records which the Issuer determines; provided, in good faithhowever, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors that unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such the 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 inspections shall be deemed confidential and , the Company shall not be used by it as required to provide any information under this subparagraph (j) if (A) the basis Company believes, after consultation with counsel for any market transactions in the securities of Company, that to do so would cause the Issuer or its Affiliates unless and until Company to forfeit an attorney-client privilege that was applicable to such information is made generally available 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 the public. Each Selling furnishing any such information with respect to (A) or (B) such Holder of such Registrable Securities further 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 Issuer Company and allow the IssuerCompany, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential.
(ik) The Issuer will use reasonable best efforts to Company shall cause the Registrable Securities included in any registration statement to be furnished (A) listed on each securities 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.
(l) The Company shall provide a CUSIP number for the Registrable Securities included in any registration statement not later than the effective date of such registration statement.
(m) The Company shall cooperate with each Selling Holder and each Underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to each Underwriterbe made with the National Association of Securities Dealers, if anyInc.
(n) The Company shall during the period when the prospectus is required to be delivered under the Securities Act, a signed counterpartpromptly file all documents required to be filed with the Commission pursuant to Sections 13(a), addressed to such Selling Holder 13(c), 14 or Underwriter, of (i15(d) an opinion or opinions of counsel to the Issuer and (ii) a comfort letter or comfort letters from the Issuer's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions of counsel or comfort letters, as the case may be, as the managing Underwriter for the offering reasonably requestsExchange Act.
(jo) The Issuer Company will otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its securityholderssecurity holders, as soon as reasonably practicable, an earnings statement covering the first fiscal year a period of the Issuer commencing 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a11(a) of the Securities ActAct and the rules and regulations of the Commission thereunder.
(kp) The Issuer Company will use its commercially reasonable best efforts to cause all such Registrable Securities Common Stock and, in the event of a public offering of Series A Preferred Stock, the Series A Preferred Stock (subject to applicable listing requirements) to be listed or quoted on each securities exchange or quoted on each inter-dealer automated quotation system on which similar securities issued by the Issuer are Common Stock is then listed or quoted. The Issuer Company may require each Selling Holder of Registrable Securities Holders promptly to promptly furnish in writing to the Issuer Company such information regarding such Selling Holder and Holders, the plan of distribution of the Registrable Securities and other information as the Issuer Company may from time to time reasonably request and such other information or as may be legally required in connection with such registration. Each Selling Holder agrees that, upon receipt of any notice from the Issuer of the discovery of any condition or the happening of any event, in each case 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 Issuer, such Selling Holder will deliver to the Issuer (at the Issuer'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 Issuer shall give such notice, the Issuer shall extend the period during which such registration statement shall be maintained effective (including the periods referred to in Sections 3.1(a) and 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 Issuer 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
