Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable: (i) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed of; (ii) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders (“Shareholders’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances); (iii) 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 for the period required under Section 8(a)(i) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares; (iv) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (a) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (b) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (c) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes; (v) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders to consummate the disposition in such jurisdictions of the Registrable Shares included in a registration; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause (v); (vi) furnish to the holders of Registrable Shares such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares; (vii) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares; (viii) notify the holders of Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or any document related thereto includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and prepare and furnish to the holders of Registrable Shares included in such registration a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing; (ix) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (A) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (B) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (C) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable law; (x) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment; (xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” in customary form and at customary times and covering matters of the type customarily covered by comfort letters; (xii) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares); (xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares; (xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company; (xv) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares; (xvi) promptly issue to any underwriter to which the holders of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares; (xvii) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary; (xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any Common Shares are listed; (xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA; (xx) 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, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the subject registration statement; and (xxi) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby. (b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof. (c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 2 contracts
Samples: Registration Rights Agreement (Membership Collective Group Inc.), Registration Rights Agreement (Membership Collective Group Inc.)
Preparation and Filing. (a) If and whenever the Company is under an ---------------------- obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable SharesPurchaser Shares under the Securities Act, the Company shall, as expeditiously as practicable:
(ia) with respect to a registration under Sections 9.2, 9.3 and 9.4, use its reasonable best efforts to cause a registration statement that registers such Registrable Purchaser Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Purchaser Shares have been disposed ofof (if earlier), provided, --------- however, that the Company may discontinue any registration of its securities ------- that is being effected pursuant to Section 9.3 hereof at any time prior to the effective date of the registration statement relating thereto;
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Purchaser Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by each holder of Purchaser Shares, to any Selling Investors and to the Majority Demanding Holders (“Shareholders’ Selling Investors' Counsel”), copies of all such documents proposed to be filed with the SEC (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel such counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) prepare and file with the Commission SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for at least the period required under periods set forth in Section 8(a)(i9(a) or until all of such Purchaser Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the registration of the sale or other disposition of such Registrable Purchaser Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Selling Investors promptly (ai) of the receipt by the Company of any notification with respect to any comments by the Commission SEC with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission SEC for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission SEC of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Purchaser Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Purchaser Shares covered by such registration statement under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders any Selling Investor reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such Selling Investor to consummate the disposition in such jurisdictions of the Registrable Purchaser Shares included in a registrationowned by such Selling Investor; provided, -------- however, that the Company will not be required to qualify generally to do ------- business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required so to do so but for this clause paragraph (ve);
(vif) furnish to the holders of Registrable Shares each Selling Investor such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Selling Investor may reasonably request in order to facilitate the public sale or other disposition of such Registrable Purchaser Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Purchaser Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares seller or sellers thereof to consummate the disposition of such Registrable Purchaser Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis each Selling Investor at any time when a prospectus relating to such Registrable Purchaser Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in paragraph (a) of this Section, of the happening of any document related thereto includes event as a result of which the prospectus included in such registration statement, as then in effect, included an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such seller, prepare and furnish to the holders of Registrable Shares included in such registration seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by any counsel to any Selling Investor and the Majority Demanding Holders, Selling Investors' Counsel or any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or any such underwriter (collectively, the “"Inspectors”"), all pertinent financial and other ---------- records, pertinent corporate documents and properties of the Company (collectively, the “"Records”"), as shall be reasonably necessary to enable them ------- to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in ----------- connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission of a material fact in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has otherwise been made generally available to the public through no breach public. The Selling Investor agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "comfort" letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may not be the Company) for such Registrable Purchaser Shares;
(xvim) promptly issue to any underwriter to which the holders of Registrable Shares any Selling Investor may sell shares in such offering certificates evidencing such Registrable Purchaser Shares;
(xvii) ; provided, -------- however, that the Company shall have the right to approve any such underwriter ------- in connection with an underwritten offeringoffering pursuant to Section 9.2 hereof, participate, with such approval not to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offeredbe unreasonably withheld, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company shall have the right to select such underwriter in “road shows’ as is customaryconnection with an underwritten offering pursuant to Section 9.3 hereof;
(xviiin) use its reasonable best efforts to list such Registrable Purchaser Shares on any national securities exchange on which any shares of the Common Stock are listed or on Nasdaq if then included, or if the Common Stock is not then listed on a national securities exchange or on Nasdaq, use its best efforts to qualify such Purchaser Shares are listedfor inclusion on such national securities exchange or Nasdaq as the holders of a majority of such Purchaser Shares shall request;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC and, if required under such rules and regulations, make available to its securityholderssecurity holders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement; and, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act;
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Purchaser Shares contemplated hereby.; and
(bq) Each holder of use its best efforts to make available its senior executive and financial officers to participate at the Registrable Shares, upon receipt reasonable request of any notice from the Company of any event of the kind described underwriter in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant marketing presentations to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereofpotential investors.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Apollo Investment Fund Iv Lp), Securities Purchase Agreement (Rare Medium Group Inc)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Restricted Shares, the Company shall, as expeditiously as practicable:
(ia) with respect to a registration under Sections 5, 6 and 7, use its reasonable best efforts to cause a registration statement that registers such Registrable Restricted Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Restricted Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Restricted Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to each holder of Restricted Shares, to any counsel to any seller of Restricted Shares (the "Selling Holder") and to one counsel selected by the Majority Demanding Holders -------------- holders of a majority of such Restricted Shares (“Shareholders’ the "Selling Holders' --------------- Counsel”"), copies of all such documents proposed to be filed (it being ------- understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel such counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for at least the period required under periods set forth in Section 8(a)(i9(a) or until all of such Restricted Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Restricted Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing any counsel to any Selling Holder and the Selling Holders' Counsel promptly (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Restricted Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Restricted Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders any seller of Restricted Shares reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such seller of Restricted Shares to consummate the disposition in such jurisdictions of the Registrable Restricted Shares included in a registrationowned by such seller; provided, however, that the Company will -------- ------- not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required so to do so but for this clause paragraph (ve);
(vif) furnish to the holders each seller of Registrable such Restricted Shares such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders seller of Restricted Shares may reasonably request in order to facilitate the public sale or other disposition of such Registrable Restricted Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Restricted Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares seller or sellers thereof to consummate the disposition of such Registrable Restricted Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis each seller of such Restricted Shares at any time when a prospectus relating to such Registrable Restricted Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in paragraph (a) of this Section, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such seller, prepare and furnish to the holders of Registrable Shares included in such registration seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by any counsel to any Selling Holder and the Majority Demanding Selling Holders, ' Counsel or any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or any such underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate ---------- documents and properties of the Company (collectively, the “"Records”"), as shall ------- be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably ----------- requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public. The seller of Restricted Shares agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent in the issuance case of an order suspending the effectiveness of a registration statement, and if one is issuedunderwritten offering, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "comfort" letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(xiik) in the case of an underwritten offering, use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may not be the Company) for such Registrable Restricted Shares;
(xvim) promptly issue to any underwriter to which the holders any seller of Registrable Restricted Shares may sell shares in such offering certificates evidencing such Registrable Restricted Shares; provided, however, that the Company shall have the right to approve any such -------- ------- underwriter with such approval not to be unreasonably withheld;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Restricted Shares on any national securities exchange on which any shares of the Common Stock are listed or on NASDAQ if then included, or if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Restricted Shares are listedfor inclusion on such national securities exchange or NASDAQ as the holders of a majority of such Restricted Shares shall request;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Restricted Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 2 contracts
Samples: Investor's Rights Agreement (Building One Services Corp), Investor's Rights Agreement (Apollo Investment Fund Iv Lp)
Preparation and Filing. (a) If If, and whenever whenever, the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (the “ShareholdersInvestors’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the ShareholdersInvestors’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 180 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify in writing the ShareholdersInvestors’ Counsel promptly of (and with respect to clause (bi) or (c) below, the holders of Registrable Shares included in such registration) in writing (a) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose (and the Corporation shall use its best efforts to prevent the issuance thereof or, if issued, to obtain its withdrawal) and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request request, to keep such registrations or qualifications in effect for so long as the registration statement covering such Registrable Shares remains in effect and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company will Corporation shall not be required to (i) qualify generally to do business, subject itself to general taxation or consent to general service of process business as a foreign Corporation in any jurisdiction where in which it would not otherwise be required to do so but for the requirements of this clause (ve), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction;
(vif) furnish to the holders of Investors holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares, provided, however, that the Corporation shall not be required to (i) qualify to do business as a foreign Corporation in any jurisdiction in which it would not otherwise be required to do so but for the requirements of this clause (g), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis the Investors holding such Registrable Shares at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subsection (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investors, prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the CompanyCorporation’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors Inspectors, unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, or (Ciii) such Information has been made generally available to the public through no breach public. The Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation’s expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscold comfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to form, naming the holders selling Investors holding such Registrable Shares)Shares as additional addressees or parties who may rely thereon;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may not be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investors holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange or automated quotation system of the National Association of Securities Dealers, Inc. (the “NASD”) on which any shares of Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of Registrable Shares which are being or have been registered pursuant to this Agreement shall provide to the Corporation, upon the request of the Corporation, such written information and materials as the Corporation may reasonably request in order to effect or maintain such registration. Each holder of Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii) hereof6(h), shall forthwith discontinue the disposition of the such Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof6(h), and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its commercially reasonable best efforts to cause a registration statement Registration Statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days Business Days before filing a registration statement Registration Statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement Registration Statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ "Counsel”), ") copies of all such documents proposed to be filed (it being understood that such five-business-day Business Day period need not apply to amendments or successive drafts of the same document proposed to be filed so long as such amendments or successive drafts are supplied to the Shareholders’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 Registration Statement effective for the at least an additional period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) promptly notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (c) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(v) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders to consummate the disposition in such jurisdictions of the Registrable Shares included in a registration; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause (v);
(vi) furnish to the holders of Registrable Shares such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(vii) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares;
(viii) notify the holders of Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or any document related thereto includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and prepare and furnish to the holders of Registrable Shares included in such registration a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ix) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (A) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (B) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (C) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable law;
(x) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(xii) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares);
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xv) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvi) promptly issue to any underwriter to which the holders of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xvii) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any Common Shares are listed;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xx) 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, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the subject registration statement; and
(xxi) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.the
Appears in 1 contract
Samples: Registration Rights Agreement (Exchange Applications Inc)
Preparation and Filing. (a) If If, and whenever whenever, the Company is under an obligation pursuant to the provisions of this Agreement agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously promptly as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for 180 days or, if earlier, until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such those Registrable Shares shall have been disposed of;
(iib) furnish, at least five business days before filing a registration statement that registers such those Registrable Shares, a the prospectus relating thereto to be included in the registration statement or any amendments or supplements relating to such a the registration statement or prospectus, to one counsel selected by the Majority Demanding Holders (“Shareholders’ Counsel”), Investor copies of all such documents proposed to be filed (it being understood that such that five-business-day period need not apply to successive drafts of the same document proposed to be filed so filed, as long as such the successive drafts are supplied to the Shareholders’ Counsel Investor’s counsel in advance of the proposed filing by a period of time that is customary and reasonable under in the circumstances);
(iiic) prepare and file with the Commission such amendments and supplements to such the registration statement and the prospectus used in connection therewith as may be necessary to keep such the registration statement effective for the period required under Section 8(a)(iat least 180 days or until all those Registrable Shares shall have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such those Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investor promptly of (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such the registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof of the registration statement or prospectus or for additional information with respect theretoto it, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such the registration statement or prospectus or any amendment or supplement thereto to it or the initiation or threatening of any proceeding for that purpose (and the Company shall use its best efforts to prevent the issuance of such a stop order or, if issued, to obtain its withdrawal), and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such the Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such those Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders reasonably request request, to keep those registrations or qualifications in effect for as long as the registration statement covering those Registrable Shares remains in effect, and do any and all other acts and things which that may be reasonably necessary or advisable to enable the Shareholders Holders to consummate the disposition in such those jurisdictions of the Registrable Shares included in a registration; provided, however, that owned by the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause (v)Holders;
(vif) furnish to the holders of Holders holding those Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders those Holders may reasonably request request, in order to facilitate the public sale or other disposition of such those Registrable Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such those Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares Holders to consummate the disposition of such those Registrable Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis the Holders at any time when a prospectus relating to such those Registrable Shares or is required to be delivered under the Securities Act of any document related thereto event as a result of which the prospectus included in the registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of a Holder, prepare and furnish to the holders of Registrable Shares included in such registration that Holder a reasonable number of copies of a supplement to or an amendment of such that prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such that prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, any underwriter participating in any disposition pursuant to such registration statement statement, and any attorney, accountant accountant, or other agent retained by the Majority Demanding Holders or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors directors, and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors Inspectors, unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, or (Ciii) such Information has been made generally available to the public through no breach public. The Holders shall, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscold comfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to form, naming the holders selling Holders holding such Registrable Shares)Shares as additional addressees or parties who may rely on such opinion or opinions;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may not be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Holders holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anyshares of Common Stock are not listed on a national securities exchange, participating in the disposition of use its best efforts to qualify such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAfor inclusion on the automated quotation system of the National Association of Securities Dealers, Inc. (the “NASD”);
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) by this agreement. Each holder Holder of Registrable Shares registered pursuant to this agreement shall provide to the Company, upon the request of the Registrable SharesCompany, such written information and materials as the Company may reasonably request to effect or maintain such registration. Each Holder, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viiiclause (h) hereofabove, shall forthwith discontinue the disposition of the such Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holderHolder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viiiclause (h) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereofabove.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Comcam International Inc)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of one year or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five ten business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders holders of Registrable Shares requesting such registration (the “ShareholdersInvestors’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-business-ten business day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the ShareholdersInvestors’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the a period required under Section 8(a)(iof one year or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify in writing the ShareholdersInvestors’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (a) of the receipt by the Company of any notification with respect to (i) any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its commercially reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders holders of Registrable Shares reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders of Registrable Shares Investors such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best commercially reasonable efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or any document related thereto includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investors prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (Ciii) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (Div) such disclosure is required to be made under applicable law;
(xj) use its commercially reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscold comfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its commercially reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investors holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange (including the New York Stock Exchange, the Nasdaq Stock Market or the American Stock Exchange) on which any the shares of Common Shares Stock are listedlisted at the time of effectiveness of the registration statement;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) 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, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement; and
(xxip) otherwise use its commercially reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Campus Crest Communities, Inc.)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by a majority of the Majority Demanding Holders Investors initiating the registration (“Shareholders’ the "Investors' Counsel”), ") copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investors' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify in writing the Shareholders’ Investor's Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board determines to be contrary to the best interests of the Company or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Investors holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investors, prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Company, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investors holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Lifeminders Com Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, Corporation shall as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five ten (10) business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ the "Investor's Counsel”"), copies of all such documents proposed to be filed (it and permit Investor's Counsel to review the registration statement, the prospectus and any amendments or supplements thereto(it being understood that such fiveten-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investor's Counsel in advance of the proposed filing by and within a reasonable period of time that is customary and reasonable under following the circumstancesreceipt of any comments by the staff of the Commission by he Corporation);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investor's Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
; (ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Investor holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) in the event of an underwritten public offering of the Registrable Shares, enter into (together with all holders proposing to distribute Registrable Securities through such underwriting) and perform its obligations under an underwriting agreement, in usual and customary form reasonably acceptable to the Corporation, with the managing underwriter of such offering;
(h) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiii) notify the holders of Investor holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 4, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investor, prepare and furnish to the holders of Registrable Shares included in such registration Investor a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixj) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestor holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investor or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, confidential and of which determination the Inspectors are Inspector is so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or an omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investor agrees that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xk) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters addressed to the Corporation and any selling Stockholders in customary form and at customary times and covering matters of the type customarily covered by cold comfort lettersbenefits;
(xiil) use its all commercially reasonable best efforts to prevent the issuance of any stop order or other order suspending the effectiveness of the registration statement and, if such an order is issued, to obtain from its the withdrawal thereof at the earliest possible time and to notify the Investor of the issuance of such order and the resolution thereof;
(m) furnish to the Investor, on the date that the registration statement becomes effective, a letter, dated such date, of outside counsel an opinion or opinions in customary form representing the Corporation (which shall also be and reasonably acceptable to the Investor) addressed to the holders selling Registrable Shares)Investor, confirming such effectiveness and, to the knowledge of such counsel, the absence of any stop order;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvn) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvio) promptly issue to any underwriter to which the holders of Investor holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviip) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxq) hold in confidence and not make any disclosure of information concerning the Investor provided to the Corporation if at the time such information is provided the Corporation is notified of the confidential nature of such information unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any registration statement that includes the Investor's Registrable Shares, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement, or (v) the Investor consents to the form and content of any such disclosure. The Corporation shall, upon learning that disclosure of any information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Investor prior to making such disclosure, and cooperate with the Investor in taking appropriate action to prevent disclosure of, or to obtain a protective order for, such information;
(r) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its securityholderssecurity holders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 twelve (12) months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11 (a) of the Securities Act; and
(xxis) otherwise subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary accessory to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii5(i) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s holders' receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii5(i) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(ia) use its commercially reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Stockholder (“Shareholders’ the "Selling Purchaser's Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel such counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 180 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Selling Purchaser's Counsel promptly (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its commercially reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders any seller of Registrable Shares reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such seller of Registrable Shares to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by such seller; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required so to do so but for this clause paragraph (ve);
(vif) furnish to the holders each seller of such Registrable Shares such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders seller of Registrable Shares may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best commercially reasonable efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares seller or sellers thereof to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis each seller of such Registrable Shares at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in paragraph (a) of this Section, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such seller, prepare and furnish to the holders of Registrable Shares included in such registration seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holdersany seller of such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders any such seller or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public. The seller of Registrable Shares agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its commercially reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its commercially reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter, which underwriter shall be chosen by the Company subject to the approval of the Stockholder, to which the holders any seller of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange or national automated quotation system on which any shares of the Common Stock are listed or, if the Common Stock is not so listed, use its commercially reasonable efforts to qualify such Registrable Shares are listedfor inclusion on the automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD") or such national securities exchange as the Company shall reasonably determine;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) otherwise use its commercially 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its commercially reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Fibernet Telecom Group Inc\)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its commercially reasonable efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(ia) use its commercially reasonable best efforts in good faith to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 180 days (as extended pursuant to Section 25) or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders holders of a majority of such Registrable Shares (“Shareholders’ the "Selling Stockholders' Counsel”."), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel such counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under of 180 days (as extended pursuant to Section 8(a)(i25) or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Selling Stockholders' Counsel promptly (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its commercially reasonable best efforts in good faith to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders any seller of Registrable Shares reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such seller of Registrable Shares to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by such seller; provided, however, that the Company will not be -------- ------- required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required so to do so but for this clause paragraph (ve);
(vif) furnish to the holders each seller of such Registrable Shares such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders seller of Registrable Shares may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best commercially reasonable efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares seller or sellers thereof to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis each seller of such Registrable Shares at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in paragraph (a) of this Section, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such seller, prepare and furnish to the holders of Registrable Shares included in such registration seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, Selling Stockholders' Counsel or any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders a seller of Registrable Shares or any such underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public. Each Investor agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its commercially reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts in good faith to obtain from its independent certified public accountants “comfort letters” "comfort" letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(xiik) use its commercially reasonable best efforts in good faith to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders any seller of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares; provided, however, that the Company shall have the right to approve -------- ------- any such underwriter which approval shall not be unreasonably withheld;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its commercially reasonable efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD") or such national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall request;
(xxo) otherwise use its commercially reasonable best efforts in good faith to comply with all applicable rules and regulations of the Commission and make available to its securityholders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and
(xxip) otherwise use its commercially reasonable best efforts in good faith to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (V I Technologies Inc)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Eligible Shares, the Company shall, as expeditiously as practicable:
(ia) use its commercially reasonable best efforts to cause a registration statement Registration Statement that registers such Registrable Eligible Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement Registration Statement that registers such Registrable Eligible Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement Registration Statement or prospectus, to one counsel selected by the Majority Demanding Holders holders of a majority of such Eligible Shares (the “ShareholdersSelling Investors’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the ShareholdersSelling Investors’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) prepare and file with the Commission such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for the at least a period required under Section 8(a)(iof 90 days or until all of such Eligible Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Eligible Shares;
(ivd) notify in writing the ShareholdersSelling Investors’ Counsel promptly (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement Registration Statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement Registration Statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Eligible Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its commercially reasonable best efforts to register or qualify such Registrable Eligible Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Requesting Shareholders reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such holders of Eligible Shares to consummate the their disposition in such jurisdictions of the Registrable Shares included in a registrationjurisdictions; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders each holder of Registrable Eligible Shares such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Eligible Shares;
(viig) without limiting subsection (ve) above, use its best commercially reasonable efforts to cause such Registrable Eligible Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Eligible Shares to consummate the disposition of such Registrable Eligible Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis each holder of such Eligible Shares at any time when a prospectus relating to such Registrable Eligible Shares or is required to be delivered under the Securities Act, of the happening of any document related thereto event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such holder, prepare and furnish to the holders of Registrable Shares included in such registration holder a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holdersholders of such Eligible Shares, the Selling Investors’ Counsel or any underwriter participating in any disposition pursuant to such registration statement Registration Statement and any attorney, accountant or other agent retained by the Majority Demanding Holders any such holder or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statementRegistration Statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statementRegistration Statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public. The Persons holding such Eligible Shares agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent in the issuance case of an order suspending the effectiveness of a registration statementunderwritten offering, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscomfort” letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(xiik) in the case of an underwritten offering, use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Eligible Shares;
(xvim) promptly issue to any underwriter to which the holders any seller of Registrable Eligible Shares may sell shares in such offering certificates evidencing such Registrable Eligible Shares;
(xviin) in connection with an underwritten offering, participate, to upon the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers request of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to Requesting Shareholders, list such Registrable Eligible Shares on any national securities exchange on which any shares of the Common Stock are listed or, if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Eligible Shares are listedfor inclusion on the automated quotation system of the National Association of Securities Dealers, Inc. (the “NASD”) or such national securities exchange as the Requesting Shareholders shall designate;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the Registration Statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; subject registration statement; and
(xxi) otherwise to all the other provisions of this Agreement, use its commercially reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Eligible Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable Restricted Shares, the Company shall, as expeditiously as practicable:
(ia) use its reasonable best efforts subject to the provisions of Section 2, cause a registration statement that registers such Registrable Restricted Shares to become and remain effective until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Restricted Shares have been disposed ofof or the such shares are no longer Restricted Shares;
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Restricted Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Preferred Holders, on behalf of the Preferred Holders (“Shareholders’ the "Holders' Counsel”"), and copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Holders' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) subject to the provisions of Section 2, 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 for the period required under Section 8(a)(iset forth above in (a) or until all of such Restricted Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Restricted Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Holders' Counsel promptly (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the effectiveness of such registration statement or any post-effective amendment thereto, (iii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (civ) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Restricted Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its commercially reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement;
(f) use commercially reasonable efforts to register or qualify such Registrable Restricted Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Holders to consummate the disposition in such jurisdictions of the Registrable Restricted Shares included in a registrationowned by the Holders; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause (v)paragraph;
(vig) furnish to the holders Holders at least one signed and such additional number of Registrable Shares copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of a the prospectus, including a preliminary prospectus, if any, in conformity with the requirements of the Securities Act, and such other documents as such holders the Holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Restricted Shares;
(vii) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Registrable Shares included in a registration Holders on a timely basis at any time when a prospectus relating to such Registrable Restricted Shares or is required to be delivered under the Securities Act, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and prepare and furnish to the holders of Registrable Shares included in such registration Holders a reasonable number of copies of a supplement to or an amendment of such registration statement or prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existingmisleading;
(ixi) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering;
(j) furnish to any Holder on the date that such Registrable Shares are delivered to the underwriters for sale in connection with a registration pursuant to this Agreement, if such securities are being sold through underwriters, or, if such securities are not being sold through underwriters, on the date that the registration statement with respect to such securities becomes effective, an opinion, dated such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is customarily given to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders;
(k) on the date that the registration statement with respect to such securities becomes effective, use commercially reasonable efforts to obtain a "comfort" letter dated such date, from the independent certified public accountants of the Company, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters, if any, and to the Holders, and, if such securities are being sold through underwriters, a reaffirmation of such letter on the date that such Registrable Securities are delivered to the underwriters for sale;
(l) as soon as practicable after the effective date of the registration statement, and in any event within sixteen (16) months thereafter, have "made generally available to its security holders" (within the meaning of Rule 158 under the Securities Act) an earning statement (which need not be audited) covering a period of at least twelve (12) months beginning after the effective date of the registration statement and otherwise complying with Section 11(a) of the Securities Act;
(m) provide a transfer agent and registrar for all Registrable Securities registered pursuant hereunder and a CUSIP number for all such Registrable Securities, in each case not later than the effective date of such registration and provide the transfer agent with printed certificates for Registrable Shares in a form eligible for deposit with The Depositary Trust Company.
(n) make available upon reasonable notice and during normal business hours, for inspection by a representative of the Majority Demanding Holdersholders of a majority in number of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement Registration Statement, and any attorney, accountant one firm of attorneys or other agent accountants retained by each of the Majority Demanding Holders or sellers and underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibilityCompany, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector representative, underwriter, attorney or accountant in connection with the registration, with respect to each at such registration statement. Any of the Information which time or times as the Company determines shall reasonably determine; subject to reasonable restrictions and agreements to safeguard the confidentiality of confidential information;
(o) cooperate and assist in good faith any filings required to be confidential, made with the NASD and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (A) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, performance of any due diligence investigation by any underwriter (B) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (C) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure including any "qualified independent underwriter" that is required to be made under applicable law;
(x) use its reasonable best efforts to prevent retained in accordance with the issuance of an order suspending the effectiveness of a registration statement, rules and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” in customary form and at customary times and covering matters regulations of the type customarily covered by comfort letters;
(xii) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable SharesNASD);
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvp) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Restricted Shares;
(xviq) promptly issue to any underwriter to which the holders of Registrable Holders holding such Restricted Shares may sell shares in such offering certificates evidencing such Registrable Restricted Shares;
(xviir) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Restricted Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xx) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations qualify such Restricted Shares for inclusion on the automated quotation system of the Commission and make available to its securityholdersNational Association of Securities Dealers, as soon as reasonably practicable, earnings statements covering a period of 12 months beginning with Inc. (the first day of "NASD") or the Company’s first full calendar quarter after the effective date of the subject registration statementOTC Bulletin Board; and
(xxis) otherwise use its commercially reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Restricted Shares contemplated hereby.
(b) hereby in accordance with the provisions of Section 2 hereof. Each holder of the Registrable Restricted Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii4(h) hereof, shall forthwith discontinue disposition of the Registrable Restricted Shares pursuant to the registration statement covering such Registrable Restricted Shares until such holder’s Holder's receipt of the copies of the supplemented or amended registration statement or prospectus contemplated by Section 8(a)(viii4(h) hereof, and, if so directed by the Company, such holder Holder shall deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder’s Holder's possession, of the prospectus covering such Registrable Restricted Shares at the time of receipt of such notice. For No Preferred Holder participating in such underwriting shall be required to make any representations, warranties or indemnities except as they relate to such Holder's ownership of shares and authority to enter into the avoidance underwriting agreement and to such Holder's intended method of doubtdistribution, and the period during which the disposition liability of the Registrable Shares is discontinued pursuant such Holder shall be limited to an amount equal to the foregoing sentence or pursuant to Section 9 hereof shall not count towards net proceeds from the period set forth in Section 8(a)(i) hereofoffering received by such Holder.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (World Waste Technologies Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ the "Investors' Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investors' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investors' Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation;
(vif) furnish to the holders of Investors holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investors, prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investors holding such Registrable Shares may sell shares in such offering offering, certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Providence Service Corp)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ "Counsel”), ") copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) promptly notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders holders of the Registrable Shares reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such holders to consummate the disposition in such jurisdictions of the such holders' Registrable Shares included in a registrationShares; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its by-laws or amended and restated certificate of incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such holders, prepare and furnish to the such holders of Registrable Shares included in such registration a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, holders of such Registrable Shares any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for listing on the disposition Nasdaq Stock Market, or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, Shares upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, at its own expense and as expeditiously as practicable:
(i) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed of;
(ii) furnish, at least five business days (5) Business Days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one (1) counsel selected by the Majority Demanding Holders holders of at least a majority of the Class A Units (the “ShareholdersMembers’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-business-day five (5) Business Day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the ShareholdersMembers’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iii) 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 for the period required under Section 8(a)(i) until all of such Registrable Shares have been disposed of and to comply with the provisions of the Securities Act with respect to the sale or other disposition Transfer of such Registrable Shares;
(iv) promptly notify in writing the ShareholdersMembers’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (a) of the receipt by the Company of any notification with respect to (A) any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bB) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto thereto, which the Company will take all reasonable actions required to prevent the entry of such stop order or remove it if entered after the filing of the registration statement, or the initiation or threatening of any proceeding for that purpose purpose, and (cC) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(v) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders holders of Registrable Shares reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders holders of Registrable Shares to consummate the disposition Transfer in such jurisdictions of the Registrable Shares included in a registrationowned by such Persons; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v);
(vi) furnish to the holders of Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Persons may reasonably request in order to facilitate the public sale or other disposition Transfer of such Registrable Shares;
(vii) without limiting subsection paragraph (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities Governmental Authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares to consummate the disposition Transfer of such Registrable Shares;
(viii) notify the holders of Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or any document related thereto includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the holders of Registrable Shares, prepare and furnish to the holders of Registrable Shares included in such registration Persons a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such sharesRegistrable Shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ix) make available upon reasonable notice and during normal business hoursavailable, for inspection by the Majority Demanding Holdersholders of Registrable Shares, any underwriter participating in any disposition Transfer pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders holders representing a majority of the outstanding Registrable Shares or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent documents and properties of the Company (collectively, the “Records”)Company, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officersOfficers, directors Managers and employees to supply all such information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which that the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (A) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (B) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (C) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates public, or (D) such disclosure is required to be made under applicable law;
(x) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscold comfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiixi) use its reasonable best efforts to obtain from its legal counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvxii) provide a transfer agent and registrar (which may be the same entity Entity and which may be the Company) for such Registrable Shares;
(xvixiii) promptly issue to any underwriter to which the holders of Registrable Shares may sell shares Registrable Shares in such offering certificates evidencing such Registrable Shares;
(xviixiv) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any Common Registrable Shares are listed;
listed or use its best efforts to qualify such Registrable Shares for inclusion on the automated quotation system of the Financial Industry Regulatory Authority (xix) cooperate with each holder and each underwriter“FINRA”), if any, participating in or such other national securities exchange as the disposition holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxxv) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its securityholdersSecurity holders, as soon as reasonably practicable, earnings statements covering a period of 12 twelve (12) months beginning with the first day of the Company’s first full calendar quarter within three (3) months after the effective date of the subject registration statement; and
(xxixvi) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof11.10(f)(viii), shall forthwith discontinue disposition Transfer of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof11.10(f)(viii), and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Majestic Holdco, LLC)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) prepare and (within 30 days after the end of the period within which requests for registration may be given to the Corporation, unless the failure to file within such 30 days period occurs due to matters outside the Corporation’s control, in which case as soon as practicable) file with the Commission a registration statement with respect to such Registrable Shares and thereafter use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (yi) the date on which all of such Registrable Shares have been disposed ofof and (ii) the one year (or, in the case of a registration statement under Form S-3, two year) anniversary of the effectiveness of such registration statement;
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders holders of Registrable Shares requesting such registration (the “ShareholdersInvestors’ Counsel”), including copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the ShareholdersInvestors’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for during the period required under specified in Section 8(a)(i6(a) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify in writing the ShareholdersInvestors’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders holders of Registrable Shares reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders of Registrable Shares Investors such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its reasonable best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or any document related thereto includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investors prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent documents and properties of the Company Corporation (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the CompanyCorporation’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (Ciii) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (Div) such disclosure is required to be made under applicable law;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscold comfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investors holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xvii) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviiin) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to cause all Registrable Shares to be listed on the disposition Nasdaq Stock Market, Inc. (“NASDAQ”) or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) 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, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its commercially reasonable best efforts to cause a registration statement Registration Statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days Business Days before filing a registration statement Registration Statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement Registration Statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ "Counsel”), ") copies of all such documents proposed to be filed (it being understood that such five-business-day Business Day period need not apply to amendments or successive drafts of the same document proposed to be filed so long as such amendments or successive drafts are supplied to the Shareholders’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 Registration Statement effective for the at least an additional period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) promptly notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders holders of the Registrable Shares reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such holders to consummate the disposition in such jurisdictions of the such holders' Registrable Shares included in a registrationShares; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders of such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities of the United States as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such holders, prepare and furnish to the such holders of Registrable Shares included in such registration a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, any underwriter participating in any disposition pursuant to such registration statement Registration Statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statementRegistration Statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public, and the Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent if required by the issuance of an order suspending the effectiveness of a registration statement, and if one is issuedunderwriters, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its commercially reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) if required by the underwriters, use its commercially reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary use commercially reasonable efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list qualify such Registrable Shares for listing on any the Nasdaq Stock Market or such other national securities exchange on which any Common Shares are listedthe Corporation shall from time to time list its securities;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) otherwise use its commercially 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, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the subject registration statementCommission; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its commercially reasonable best efforts to take all other commercially reasonable steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, Shares upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Exchange Applications Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed of;
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders holders of a majority of the Series C Preferred Stock requesting such registration (“Shareholders’ the "Investors' Counsel”"), together with copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investors' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the period required under Section 8(a)(i) until all of such Registrable Shares have been disposed of and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify in writing the Shareholders’ Investors' Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any any. amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders holders of Registrable Shares reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders of Registrable Shares Investors such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting limiting, and subject to, subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or any document related thereto includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investors prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (Ciii) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (Div) such disclosure is required to be made under applicable law;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investors holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Stock are listed or, if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Registrable Shares are listedfor inclusion on the automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as a majority of the Series C Holders shall reasonably request;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its securityholderssecurity holders, as soon as reasonably practicable, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by Insight and Insight II (the Majority Demanding Holders (“Shareholders’ Counsel”"INVESTORS' COUNSEL"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investors' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 180 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investors' Counsel promptly of (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose (and the Corporation shall use its best efforts to prevent the issuance thereof or, if issued, to obtain its withdrawal) and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as any seller of Registrable Shares reasonably requests, to keep such registrations or qualifications in effect for so long as the Majority Demanding Holders reasonably request registration statement covering such Registrable Shares remains in effect and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such seller of Registrable Shares to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by such seller; providedPROVIDED, howeverHOWEVER, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause (vSECTION 6(e);
(vif) furnish to the holders each seller of Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders seller of Registrable Shares may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of such Registrable Shares seller or sellers thereof to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis each seller of such Registrable Shares at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in SECTION 6(A), of the happening of any document related thereto event known to the Corporation as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such seller, prepare and furnish to the holders of Registrable Shares included in such registration seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holdersany seller of Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders any such seller or underwriter (collectively, the “Inspectors”"INSPECTORS"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “Records”"RECORDS"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “Information”"INFORMATION") reasonably requested by any such Inspector in connection with such registration statement. Any statement (any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors Inspectors, unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdictionjurisdiction or, upon the written advice of counsel, is otherwise required by law, or (Ciii) such Information has been made generally available to the public through no breach public, and each seller of Registrable Shares agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential);
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "COLD COMFORT" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling form, naming each seller of Registrable Shares)Shares as an additional addressee or party who may rely thereon;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity Person and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders any seller of Registrable Shares may sell shares in such offering offering, certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall request;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
and (xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Exchange Applications Inc)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(i) use its reasonable best efforts to cause a registration statement Registration Statement that registers such Registrable Shares to become and remain effective for a period of 120 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(ii) furnish, at least five business days before filing a registration statement Registration Statement that registers such Registrable Shares, a prospectus Prospectus relating thereto or and any amendments or supplements relating to such a registration statement Registration Statement or prospectusProspectus, to one counsel selected by for the Majority Demanding Holders (“Shareholders’ Counsel”), Employee copies of all such documents proposed to be filed (it being understood that such five-five business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel such counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iii) 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 effective for the lesser of a period required under Section 8(a)(iof 120 days or until all of such Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(iv) notify counsel for the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) Employee in writing (aA) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement Registration Statement or prospectus or any amendment or supplement thereto Prospectus, or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bB) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement Registration Statement or prospectus Prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding proceedings for that purpose and (cC) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(v) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders any seller of Shares reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such seller of Shares to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by such seller; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause (v);
(vi) furnish to the holders each seller of Registrable such Shares such number of copies of a prospectussummary Prospectus or other Prospectus, including a preliminary prospectusProspectus, in conformity with the requirements of the Securities Act, and such other documents as such holders seller of Shares may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(vii) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities Governmental Authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares seller or sellers thereof to consummate the disposition of such Registrable Shares;
(viii) notify the holders of Registrable Shares included in a registration on a timely basis each seller of such Shares at any time when a prospectus Prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in clause (i) of this Section 6(a) of the happening of any document related thereto event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such seller, prepare and furnish to the holders of Registrable Shares included in such registration seller a reasonable number of copies of a supplement to or an amendment of such prospectus Prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ix) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holdersany seller of such Shares, any underwriter Underwriter participating in any disposition pursuant to such registration statement Registration Statement and any attorney, accountant or other agent retained by the Majority Demanding Holders any such seller or underwriter Underwriter (collectively, the “"Inspectors”"), all pertinent financial financial, business and other records, pertinent corporate documents and properties of the Company (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any Registration Statement (and any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (A) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statementRegistration Statement, (B) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (C) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or public, and (D) the seller of Shares agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure is required to be made under applicable lawof the Information deemed confidential);
(x) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” a "cold comfort" letter in customary form and at customary times and covering such matters of the type customarily covered by cold comfort letters;
(xiixi) use its reasonable best efforts to obtain obtain, from its counsel counsel, an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Sharessellers of Shares in such registration);
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvxii) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvixiii) promptly issue to any underwriter Underwriter to which the holders any seller of Registrable Shares may sell shares Shares in such offering certificates evidencing such Registrable Shares;
(xviixiv) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Stock are listed or, if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Shares are listedfor inclusion on the automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), National Market System ("NMS"), or such other national securities exchange as the holder of such Shares shall request;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxxv) 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, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the subject registration statementCommission; and
(xxixvi) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each each holder of Shares that sells Shares pursuant to a registration under this Agreement agrees that during such time as such seller may be engaged in a distribution of the Registrable Shares, such seller shall comply with Regulation M promulgated under the Exchange Act and pursuant thereto it shall, among other things: (i) not engage in any stabilization activity in connection with the Common Stock of the Company in contravention of such rules; (ii) distribute the Shares under the Registration Statement solely in the manner described in the Registration Statement; and (iii) cease distribution of such Shares pursuant to such Registration Statement upon receipt of any written notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of that the prospectus covering such Registrable the Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit contains any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration untrue statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement material fact or omits a material fact required to which be stated therein or necessary to make the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consentstatements therein not misleading.
Appears in 1 contract
Samples: Deferred Compensation Agreement (Icg Holdings Canada Co /Co/)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, Corporation shall as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 270 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investor (“Shareholders’ the "Investor's Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investor's Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 270 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investor's Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investor reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investor to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investor; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Investor holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investor may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investor holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investor holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 4, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of an Investor, prepare and furnish to the holders of Registrable Shares included in such registration Investor a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestor holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investor or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, confidential and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or an omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investor agree that they will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters addressed to the Corporation and any selling Stockholders in customary form and at customary times and covering matters of the type customarily covered by cold comfort lettersbenefits;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders Corporation and any selling Registrable Shares)Stockholders;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Registrable Shares Investor may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any Common shares of the Ordinary Shares are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Ordinary Shares is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its securityholderssecurity holders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11 (a) of the Securities Act; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary accessory to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares. The Investor, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii5(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s the Investor's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii5(h) hereof, and, if so directed by the CompanyCorporation, such holder the Investor shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s the Investor's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (On Track Innovations LTD)
Preparation and Filing. (a) If and whenever the Company Corporation is ---------------------- under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ the "Investors' Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investors' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investors' Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation;
(vif) furnish to the holders of Investors holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investors, prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or Or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investors holding such Registrable Shares may sell shares in such offering offering, certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Providence Service Corp)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investor (“Shareholders’ Counsel”the "INVESTOR'S COUNSEL"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investor's Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify in writing the Shareholders’ Investor's Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investor reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investor to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investor; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its Bylaws or Certificate of Incorporation which the Board determines to be contrary to the best interests of the Company or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Investor holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders the Investor may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of Investor holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investor holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 5, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investor prepare and furnish to the holders of Registrable Shares included in such registration Investor a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Company, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestor holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investor or underwriter (collectively, the “Inspectors”"INSPECTORS"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”"RECORDS"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “Information”"INFORMATION") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investor agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investor holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Stock are listed or, if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Registrable Shares are listedfor inclusion on the automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the Investor shall reasonably request;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares. The Investor, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii5(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s the Investor's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii5(h) hereof, and, if so directed by the Company, such holder the Investor shall deliver to the Company all copies, other than permanent file copies then in such holder’s the Investor's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Enlighten Software Solutions Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, Corporation shall as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investor (“Shareholders’ the "Investor's Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investor's Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investor's Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investor reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investor to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investor; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Investor holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investor may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investor holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investor holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 4, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of an Investor, prepare and furnish to the holders of Registrable Shares included in such registration Investor a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestor holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investor or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, confidential and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or an omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investor agree that they will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters addressed to the Corporation and any selling Stockholders in customary form and at customary times and covering matters of the type customarily covered by cold comfort lettersbenefits;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders Corporation and any selling Registrable Shares)Stockholders;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Registrable Shares Investor may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any Common shares of the Ordinary Shares are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Ordinary Shares is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its securityholderssecurity holders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11 (a) of the Securities Act; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary accessory to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares. The Investor, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii4(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s the Investor's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii4(h) hereof, and, if so directed by the CompanyCorporation, such holder the Investor shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s the Investor's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (On Track Innovations LTD)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable SharesShares other than in connection with an IPO, the Company shall, as expeditiously as practicable:
(i) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective until the earlier of (x) one hundred and twenty sixty (12060) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed of;
(ii) furnish, at least five (5) business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders (“Shareholders’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iii) 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 for the period required under Section 8(a)(i) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;; ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT
(iv) notify the Shareholders’ Counsel (and with respect to clause clauses (bB) or (cC) below, the holders of Registrable Shares included in such registration) in writing (aA) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bB) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (cC) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(v) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders to consummate the disposition in such jurisdictions of the Registrable Shares included in a registration; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause (v);
(vi) furnish to the holders of Registrable Shares such number of copies of a prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(vii) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares;
(viii) notify the holders of Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or any document related thereto includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Majority Demanding Holders, prepare and furnish to the holders of Registrable Shares included in such registration a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;; ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT
(ix) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (A) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (B) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (C) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable law;
(x) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscold comfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xii) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares);
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xv) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvi) promptly issue to any underwriter to which the holders of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xvii) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;; ATHENE HOLDING LTD. – REGISTRATION RIGHTS AGREEMENT
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any Common Shares are listed;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xx) 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, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the subject registration statement; and
(xxi) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed of;
(iib) furnish, at least five (5) business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders holders of Registrable Shares requesting such registration (the “ShareholdersInvestors’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-five (5) business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the ShareholdersInvestors’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the period required under Section 8(a)(i) until all of such Registrable Shares have been disposed of and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify in writing the ShareholdersInvestors’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Company Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Company Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Company Investors; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board determines to be contrary to the best interests of the Company or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Registrable Shares Company Investors such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Company Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of Company Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Company Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Company Investors, prepare and furnish to the holders of Registrable Shares included in such registration Company Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, Company Investors holding such Registrable Shares and any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Company Investors or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Aa) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bb) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Cc) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (D) affiliates; the Company Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure is required to be made under applicable lawof the Information deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscomfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Company Investors holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on FINRA’s automated quotation system, or such other national securities exchange as the disposition holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) 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, earnings statements in accordance with Rule 158 of the Securities Act covering a period of 12 twelve (12) months beginning with the first day of the Company’s first full calendar quarter within three (3) months after the effective date of the subject registration statement; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its commercially reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(bq) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii3.5(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii3.5(h) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable SharesShares under the Securities Act, the Company shall, as expeditiously as practicable:
(i) 6.1 with respect to a registration under Sections 2, 3 and 4 of this Agreement, use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier), provided, however, that the Company may discontinue any registration of its securities that is being effected pursuant to Section 3 hereof at any time prior to the effective date of the registration statement relating thereto;
(ii) 6.2 furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by each holder of Registrable Shares, to any Selling Investors and to the Majority Demanding Holders (“Shareholders’ Selling Investors' Counsel”), copies of all such documents proposed to be filed with the SEC (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel such counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iii) 6.3 prepare and file with the Commission SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective for at least the period required under Section 8(a)(iperiods set forth in this Agreement or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the registration of the sale or other disposition of such Registrable Shares;
(iv) 6.4 notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Selling Investors promptly (ai) of the receipt by the Company of any notification with respect to any comments by the Commission SEC with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission SEC for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission SEC of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(v) 6.5 use its reasonable best efforts to register or qualify such Registrable Shares covered by such registration statement under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders any Selling Investor reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such Selling Investor to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by such Selling Investor; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required so to do so but for this clause (v)Section 6.5;
(vi) 6.6 furnish to the holders of Registrable Shares each Selling Investor on a timely basis, such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Selling Investor may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares; provided, however, that the Company shall have no such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Company; and provided further, that if a final prospectus is not timely filed by the Company with the SEC in accordance with Rule 172(c) (without regard to any cure period provided by such rule) then, upon the written request of the Selling Investor, the Company shall furnish such number of copies of a final prospectus as such Selling Investor shall reasonably request;
(vii) without limiting subsection (v) above, 6.7 use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares seller or sellers thereof to consummate the disposition of such Registrable Shares;
(viii) 6.8 notify the holders of Registrable Shares included in a registration on a timely basis each Selling Investor at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in Section 6.1, of the happening of any document related thereto includes event as a result of which the prospectus included in such registration statement, as then in effect, included an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such seller, prepare and furnish to the holders of Registrable Shares included in such registration seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ix) 6.9 make available upon reasonable notice and during normal business hours, for inspection by any counsel to any Selling Investor and the Majority Demanding Holders, Selling Investors' Counsel or any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or any such underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission of a material fact in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has otherwise been made generally available to the public through no breach public. The Selling Investor agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(x) 6.10 use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "comfort" letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(xii) 6.11 use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xv) 6.12 provide a transfer agent and registrar (which may be the same entity and which may not be the Company) for such Registrable Shares;
(xvi) promptly 6.13 issue to any underwriter to which the holders of Registrable Shares any Selling Investor may sell shares in such offering certificates evidencing such Registrable Shares;
(xvii) ; provided, however, that the Company shall have the right to approve any such underwriter in connection with an underwritten offeringoffering pursuant to Section 2 hereof, participate, with such approval not to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offeredbe unreasonably withheld, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company shall have the right to select such underwriter in “road shows’ as is customaryconnection with an underwritten offering pursuant to Section 3 hereof;
(xviii) use its reasonable best efforts to 6.14 list such Registrable Shares on any national securities exchange on which any shares of the Common Stock are listed or on Nasdaq if then included, or if the Common Stock is not then listed on a national securities exchange or on Nasdaq, use its best efforts to qualify such Registrable Shares are listed;
(xix) cooperate with each holder and each underwriter, if any, participating in for inclusion on such national securities exchange or Nasdaq as the disposition holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall request;
(xx) 6.15 otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC and, if required under such rules and regulations, make available to its securityholderssecurity holders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement; and, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act;
(xxi) otherwise 6.16 use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.; and
(b) Each holder of 6.17 use its best efforts to make available its senior executive and financial officers to participate at the Registrable Shares, upon receipt reasonable request of any notice from the Company of any event of the kind described underwriter in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant marketing presentations to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereofpotential investors.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Skyterra Communications Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five (5) business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders (“Shareholders’ Counsel”)Investors, copies of all such documents proposed to be filed (it being understood that such five-five (5) business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel counsel to the Investors in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 180 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the counsel to the Investors promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investor reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders holders of Registrable Shares to consummate the disposition in such jurisdictions of the such Registrable Shares included in a registrationShares; providedPROVIDED, howeverHOWEVER, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders of Registrable Shares such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such the holders of Registrable Shares may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the holders of Registrable Shares, prepare and furnish to the holders of Registrable Shares included in such registration a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holdersholders of Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders holders of Registrable Shares or any underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector holders of Registrable Shares in connection with such registration statement. Any ; PROVIDED, HOWEVER, that any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; and PROVIDED FURTHER, HOWEVER, that the holders of Registrable Shares agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Stock are listed or, if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Registrable Shares are listedfor inclusion on the Nasdaq National Market System or such other national securities exchange as the holders of a majority of the Registrable Shares held by the Investor shall request;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Mediconsult Com Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, Corporation shall as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five ten (10) business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ the "Investor's Counsel”"), copies of all such documents proposed to be filed (it and permit Investor's Counsel to review the registration statement, the prospectus and any amendments or supplements thereto(it being understood that such fiveten-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investor's Counsel in advance of the proposed filing by and within a reasonable period of time that is customary and reasonable under following the circumstancesreceipt of any comments by the staff of the Commission by he Corporation);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investor's Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Investor holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) in the event of an underwritten public offering of the Registrable Shares, enter into (together with all holders proposing to distribute Registrable Securities through such underwriting) and perform its obligations under an underwriting agreement, in usual and customary form reasonably acceptable to the Corporation, with the managing underwriter of such offering;
(h) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiii) notify the holders of Investor holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 4, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investor, prepare and furnish to the holders of Registrable Shares included in such registration Investor a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixj) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestor holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investor or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, confidential and of which determination the Inspectors are Inspector is so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or an omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investor agrees that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xk) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters addressed to the Corporation and any selling Stockholders in customary form and at customary times and covering matters of the type customarily covered by cold comfort lettersbenefits;
(xiil) use its all commercially reasonable best efforts to prevent the issuance of any stop order or other order suspending the effectiveness of the registration statement and, if such an order is issued, to obtain from its the withdrawal thereof at the earliest possible time and to notify the Investor of the issuance of such order and the resolution thereof;
(m) furnish to the Investor, on the date that the registration statement becomes effective, a letter, dated such date, of outside counsel an opinion or opinions in customary form representing the Corporation (which shall also be and reasonably acceptable to the Investor) addressed to the holders selling Registrable Shares)Investor, confirming such effectiveness and, to the knowledge of such counsel, the absence of any stop order;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvn) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvio) promptly issue to any underwriter to which the holders of Investor holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviip) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxq) hold in confidence and not make any disclosure of information concerning the Investor provided to the Corporation if at the time such information is provided the Corporation is notified of the confidential nature of such information unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any registration statement that includes the Investor's Registrable Shares, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement, or (v) the Investor consents to the form and content of any such disclosure. The Corporation shall, upon learning that disclosure of any information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Investor prior to making such disclosure, and cooperate with the Investor in taking appropriate action to prevent disclosure of, or to obtain a protective order for, such information;
(r) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its securityholderssecurity holders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 twelve (12) months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11 (a) of the Securities Act; and
(xxis) otherwise subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary accessory to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii5(i) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s holders' receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii5(i) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company all Corporation All copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, Corporation shall as expeditiously as practicable:
(i) 4.1. use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(ii) 4.2. furnish, at least five ten (10) business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ the "Investor's Counsel”"), copies of all such documents proposed to be filed (it and permit Investor's Counsel to review the registration statement, the prospectus and any amendments or supplements thereto(it being understood that such fiveten-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investor's Counsel in advance of the proposed filing by and within a reasonable period of time that is customary and reasonable under following the circumstancesreceipt of any comments by the staff of the Commission by he Corporation);
(iii) 4.3. 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(iv) 4.4. notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investor's Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(v) 4.5. use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation or to modify any of its contractual relationships then existing;
(vi) 4.6. furnish to the holders of Investor holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
4.7. in the event of an underwritten public offering of the Registrable Shares, enter into (viitogether with all holders proposing to distribute Registrable Securities through such underwriting) and perform its obligations under an underwriting agreement, in usual and customary form reasonably acceptable to the Corporation, with the managing underwriter of such offering;
4.8. without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viii) 4.9. notify the holders of Investor holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 4, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investor, prepare and furnish to the holders of Registrable Shares included in such registration Investor a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ix) 4.10. subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestor holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investor or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, confidential and of which determination the Inspectors are Inspector is so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or an omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investor agrees that it will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(x) 4.11. use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters addressed to the Corporation and any selling Stockholders in customary form and at customary times and covering matters of the type customarily covered by cold comfort lettersbenefits;
(xii) 4.12. use its all commercially reasonable best efforts to prevent the issuance of any stop order or other order suspending the effectiveness of the registration statement and, if such an order is issued, to obtain from its the withdrawal thereof at the earliest possible time and to notify the Investor of the issuance of such order and the resolution thereof;
4.13. furnish to the Investor, on the date that the registration statement becomes effective, a letter, dated such date, of outside counsel an opinion or opinions in customary form representing the Corporation (which shall also be and reasonably acceptable to the Investor) addressed to the holders selling Registrable Shares)Investor, confirming such effectiveness and, to the knowledge of such counsel, the absence of any stop order;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xv) 4.14. provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvi) promptly 4.15. issue to any underwriter to which the holders of Investor holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xvii) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to 4.16. list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
4.17. hold in confidence and not make any disclosure of information concerning the Investor provided to the Corporation if at the time such information is provided the Corporation is notified of the confidential nature of such information unless (xxi) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any registration statement that includes the Investor's Registrable Shares, (iii) the release of such information is ordered pursuant to a subpoena or other order from a court or governmental body of competent jurisdiction, (iv) such information has been made generally available to the public other than by disclosure in violation of this or any other agreement, or (v) the Investor consents to the form and content of any such disclosure. The Corporation shall, upon learning that disclosure of any information concerning the Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Investor prior to making such disclosure, and cooperate with the Investor in taking appropriate action to prevent disclosure of, or to obtain a protective order for, such information;
4.18. otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its securityholderssecurity holders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 twelve (12) months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11 (a) of the Securities Act; and
(xxi) otherwise 4.19. subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary accessory to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii5(i) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s holders' receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii5(i) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Series B Preferred Stock and Warrant Purchase Agreement (Datametrics Corp)
Preparation and Filing. (a) If and whenever the Company At such time as Carnivale is under an obligation pursuant to the provisions of this Agreement to use commercially reasonable efforts to effect the registration of any Registrable Shares, the Company Carnivale shall, as expeditiously as practicable:
(ia) use its commercially reasonable best efforts to cause a registration statement Registration Statement that registers such Registrable Shares to become and remain effective until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed of;
(iib) furnish, at least five business days (5) Business Days before filing a registration statement Registration Statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement Registration Statement or prospectus, to one counsel selected by the Majority Demanding Holders holders of Registrable Shares requesting such registration (the “ShareholdersSellers’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-five (5) business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the ShareholdersSellers’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) prepare and file with the Commission SEC such amendments and supplements to such registration statement Registration Statement and the prospectus used in connection therewith as may be necessary to keep such registration statement Registration Statement effective for the period required under Section 8(a)(i) until all of such Registrable Shares have been disposed of and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the ShareholdersSellers’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company Carnivale of any notification with respect to any comments by the Commission SEC with respect to such registration statement Registration Statement or prospectus or any amendment or supplement thereto or any request by the Commission SEC for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Carnivale of any notification with respect to the issuance by the Commission SEC of any stop order suspending the effectiveness of such registration statement Registration Statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Carnivale of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its commercially reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Sellers reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Sellers to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Sellers; provided, provided however, that the Company Carnivale will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its Bylaws or Certificate of Incorporation which the Board determines to be contrary to the best interests of Carnivale or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Registrable Shares Sellers such number of copies of a prospectus, if any, or other prospectus, including a preliminary prospectus, and all amendments and supplements thereto, in conformity with the requirements of the Securities Act, and such other documents as such holders Sellers may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best commercially reasonable efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Carnivale to enable the holders of Sellers holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Sellers holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act of the happening of any document related thereto event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Sellers, prepare and furnish to the holders of Registrable Shares included in such registration Sellers a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to Carnivale, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersSellers holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement Registration Statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Sellers or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company Carnivale (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the CompanyCarnivale’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statementRegistration Statement. Any of the Information which the Company Carnivale determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Aa) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statementRegistration Statement, (Bb) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Cc) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (D) affiliates; the Sellers agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to Carnivale and allow Carnivale, at Carnivale expense, to undertake appropriate action to prevent disclosure is required to be made under applicable lawof the Information deemed confidential;
(xj) use its reasonable best efforts to prevent in the issuance event of an order suspending the effectiveness of a registration statement, and if one is issuedunderwritten public offering, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its commercially reasonable best efforts to obtain from its independent certified public accountants “comfort letterscold comfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its commercially reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCarnivale) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Sellers holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to list and maintain the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation listing of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use commercially reasonable efforts to qualify such Registrable Securities for inclusion on a national securities exchange as the disposition holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC and make available to its securityholders, as soon as reasonably practicable, earnings statements in accordance with Rule 158 of the Securities Act covering a period of 12 twelve (12) months beginning with the first day of the Company’s first full calendar quarter within three (3) months after the effective date of the subject registration statementRegistration Statement; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its commercially reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(bq) Each holder of the Registrable Shares, upon receipt of any notice from the Company Carnivale of any event of the kind described in Section 8(a)(viii3(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement Registration Statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii3(h) hereof, and, if so directed by the CompanyCarnivale, such holder shall deliver to the Company Carnivale all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Carbylan Therapeutics, Inc.)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable iBaby Shares, the Company shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable iBaby Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable iBaby Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable iBaby Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders holders of a majority of the Registrable Shares (“Shareholders’ the "Selling Stockholders' Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel such counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 180 days or until all of such Registrable iBaby Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable iBaby Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Selling Stockholders' Counsel promptly (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable iBaby Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable iBaby Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders any seller of Registrable iBaby Shares reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such seller of Registrable iBaby Shares to consummate the disposition in such jurisdictions of the Registrable iBaby Shares included in a registrationowned by such seller; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required so to do so but for this clause paragraph (ve);
(vif) furnish to the holders each seller of such Registrable iBaby Shares such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders seller of Registrable iBaby Shares may reasonably request in order to facilitate the public sale or other disposition of such Registrable iBaby Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable iBaby Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares seller or sellers thereof to consummate the disposition of such Registrable iBaby Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis each seller of such Registrable iBaby Shares at any time when a prospectus relating to such Registrable iBaby Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in paragraph (a) of this Section, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such seller, prepare and furnish to the holders of Registrable Shares included in such registration seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holdersany seller of such Registrable iBaby Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders any such seller or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public. The seller of Registrable iBaby Shares agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "comfort" letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable iBaby Shares;
(xvim) promptly issue to any underwriter to which the holders any seller of Registrable iBaby Shares may sell shares in such offering certificates evidencing such Registrable iBaby Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable iBaby Shares on any national securities exchange on which any shares of the Common Stock are listed or, if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Registrable iBaby Shares are listedfor inclusion on the automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD") or such national securities exchange as the holders of a majority of the Registrable Shares, Registrable Founder Shares, Registrable Astrology Shares, Registrable iBaby Shares and/or Registrable Bear Xxxxxxx Shares (as the case may be) shall request;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable iBaby Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Rights Agreement (Ivillage Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ the "Investors' Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investors' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 180 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investors' Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; providedPROVIDED, howeverHOWEVER, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders of Registrable Shares Investors such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders the Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of such Registrable Shares Investors to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Registrable Shares included in a registration Investors on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 5, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investors (subject to delay rights under Section 2(b)), prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or any underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) (subject to delay rights under Section 2(b)) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public. The Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations Information deemed confidential. If there is a reasonable likelihood, in the judgment of the Inspectors or their Affiliates or Corporation (Dbased on written advice of counsel), that compliance with the provisions of this subsection (i) such disclosure is could result in the loss of any attorney-client privilege related to the Records, the Corporation will not be required to comply with such provisions to the extent necessary to avoid the loss of such privilege; PROVIDED, HOWEVER, that if the Corporation chooses not to comply with such provisions under the foregoing circumstance then each of the Investors participating in such registration shall have the right to withdraw from such registration, such registration shall not be made under applicable law;counted toward any limitation contained in Section 2 with respect to the number of registrations permitted to be requested and the Corporation shall pay or reimburse the Investors on demand for all fees and expenses incurred by them in connection with such registration.
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Registrable Shares Investors may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Stock are listed or, if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Registrable Shares are listedfor inclusion on the automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD") or, at the Corporation's option, a national securities exchange;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable SharesSecurities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company Corporation of the occurrence of any event of the kind described in subsection (h) of this Section 8(a)(viii) hereof5, shall such holder will forthwith discontinue such holder's disposition of the Registrable Shares Securities pursuant to the registration statement covering relating to such Registrable Shares Securities until such holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by subsection (h) of this Section 8(a)(viii) hereof, 5 and, if so directed by the CompanyCorporation, such holder shall will deliver to the Company Corporation (at the Corporation's expense) all copies, other than permanent file copies copies, then in such holder’s possession, 's possession of the prospectus covering relating to such Registrable Shares Securities currently at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Cornell Corrections Inc)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (the “ShareholdersInvestors’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the ShareholdersInvestors’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the ShareholdersInvestors’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which that may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Charter which the Board of Directors determines to be contrary to the best interests of the Company or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Investors holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best commercially reasonable efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and in which they were made and, at the request of the Investors, prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existingin which they were made;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Company, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which that the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is required by law or regulation or ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investors agree that they will, to the extent permitted by law, upon learning that disclosure of such Information is required by law or regulation or sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its commercially reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscold comfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed satisfactory to the holders selling Registrable Shares)Investors;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investors holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any Common Ordinary Shares are listed;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxo) 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, earnings statements an earning statement (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earning statement shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Cgen Digital Media Co LTD)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed of;
(iib) furnish, at least five (5) business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders holders of Registrable Shares requesting such registration (the “ShareholdersInvestors’ Counsel”), copies of all such documents proposed to be filed (it being understood that such five-five (5) business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the ShareholdersInvestors’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the period required under Section 8(a)(i) until all of such Registrable Shares have been disposed of and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify in writing the ShareholdersInvestors’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Series A Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Series A Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Series A Investors; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board determines to be contrary to the best interests of the Company or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Registrable Shares Series A Investors such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Series A Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of Series A Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Series A Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Series A Investors, prepare and furnish to the holders of Registrable Shares included in such registration Series A Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, Series A Investors holding such Registrable Shares and any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Series A Investors or underwriter (collectively, the “Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information (together with the Records, the “Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Aa) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bb) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Cc) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (D) affiliates; the Series A Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company’s expense, to undertake appropriate action to prevent disclosure is required to be made under applicable lawof the Information deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letterscomfort” letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Series A Investors holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on FINRA’s automated quotation system, or such other national securities exchange as the disposition holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) 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, earnings statements in accordance with Rule 158 of the Securities Act covering a period of 12 twelve (12) months beginning with the first day of the Company’s first full calendar quarter within three (3) months after the effective date of the subject registration statement; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its commercially reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(bq) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii3.5(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii3.5(h) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors holding Registrable Shares included in such registration statement (“Shareholders’ the "Investors' Counsel”") and to the Founders' counsel, if other than counsel for the Corporation (the "Founders' Counsel"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investors' Counsel and the Founders' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the period required under Section 8(a)(ilesser of (i) 90 days and (ii) until all of such Registrable Shares have been disposed of, and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investors' Counsel and the Founders' Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors and the Founders reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders holders of Registrable Shares to consummate the disposition in such jurisdictions of the such Registrable Shares included in a registrationShares; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders of Registrable Shares included in such registration statement such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents (such as a term sheet) as such holders of Registrable Shares may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(vii) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiig) notify the holders of Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the holders of Registrable Shares, prepare and furnish to the holders of Registrable Shares included in such registration a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixh) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holdersholders of Registrable Shares included in such registration statement, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders holders of Registrable Shares or any underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector holders of Registrable Shares in connection with such registration statement. Any ; provided, however, that any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; and provided further, however, that the holders of Registrable Shares agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xi) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiij) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvk) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvil) promptly issue to any underwriter to which the holders of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviim) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Stock are listed or, if the Common Stock is not listed on a national securities exchange, use its best efforts to qualify such Registrable Shares are listedfor inclusion on the Nasdaq National Market System or the Nasdaq SmallCap Market or such other national securities exchange as the holders of a majority of the Registrable Shares held by the Investors shall request;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xxn) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxio) otherwise use its reasonable best efforts to take all other steps reasonably necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder . For purposes of this Agreement, the Corporation's best efforts shall mean the Corporation's best efforts without the expenditure of time or funds other than is customary for registrations of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus type contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereofherein.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Mobius Management Systems Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its commercially reasonable best efforts to cause a registration statement Registration Statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days Business Days before filing a registration statement Registration Statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement Registration Statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ "Counsel”), ") copies of all such documents proposed to be filed (it being understood that such five-business-day Business Day period need not apply to amendments or successive drafts of the same document proposed to be filed so long as such amendments or successive drafts are supplied to the Shareholders’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 Registration Statement effective for the at least an additional period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) promptly notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the 8 9 issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders holders of the Registrable Shares reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such holders to consummate the disposition in such jurisdictions of the such holders' Registrable Shares included in a registrationShares; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders of such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities of the United States as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such holders, prepare and furnish to the such holders of Registrable Shares included in such registration a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, any underwriter participating in any disposition pursuant to such registration statement Registration Statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”) reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (A) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (B) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, (C) such Information has been made generally available to the public through no breach of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable law;
(x) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(xii) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares");
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xv) provide a transfer agent and registrar (which may be the same entity and which may be the Company) for such Registrable Shares;
(xvi) promptly issue to any underwriter to which the holders of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xvii) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any Common Shares are listed;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xx) 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, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the subject registration statement; and
(xxi) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Insight Venture Partners Iv Lp)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its commercially reasonable best efforts to cause a registration statement Registration Statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days Business Days before filing a registration statement Registration Statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement Registration Statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ "Counsel”), ") copies of all such documents proposed to be filed (it being understood that such five-business-day Business Day period need not apply to amendments or successive drafts of the same document proposed to be filed so long as such amendments or successive drafts are supplied to the Shareholders’ Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 Registration Statement effective for the at least an additional period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) promptly notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders holders of the Registrable Shares reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such holders to consummate the disposition in such jurisdictions of the such holders' Registrable Shares included in a registrationShares; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (ve);
(vif) furnish to the holders of such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities of the United States as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such holders, prepare and furnish to the such holders of Registrable Shares included in such registration a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding Holders, any underwriter participating in any disposition pursuant to such registration statement Registration Statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statementRegistration Statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public, and the Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent if required by the issuance of an order suspending the effectiveness of a registration statement, and if one is issuedunderwriters, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its commercially reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) if required by the underwriters, use its commercially reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvi) promptly issue to any underwriter to which the holders of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xvii) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any Common Shares are listed;
(xix) cooperate with each holder and each underwriter, if any, participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRA;
(xx) 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, earnings statements covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the subject registration statement; and
(xxi) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Insight Capital Partners Iv Lp)
Preparation and Filing. (a) If and whenever the Company is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 180 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to each holder of Registrable Shares, to any counsel to any Selling Stockholder and to one counsel selected by the Majority Demanding Holders holders of a majority of such Registrable Shares (“Shareholders’ the "Selling Stockholders' Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Counsel such counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 180 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing any counsel to any Selling Stockholder and the Selling Stockholders' Counsel promptly (ai) of the receipt by the Company of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders any seller of Registrable Shares reasonably request requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders such seller of Registrable Shares to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by such seller; provided, however, that the Company will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required so to do so but for this clause paragraph (ve);
(vif) furnish to the holders each seller of such Registrable Shares such number of copies of a summary prospectus or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders seller of Registrable Shares may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Shares seller or sellers thereof to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Registrable Shares included in a registration on a timely basis each seller of such Registrable Shares at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in paragraph (a) of this Section, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of such seller, prepare and furnish to the holders of Registrable Shares included in such registration seller a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) make available upon reasonable notice and during normal business hours, for inspection by any counsel to any Selling Stockholder and the Majority Demanding Holders, Selling Stockholders' Counsel or any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders or any such underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s 's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public. The seller of Registrable Shares agrees that it will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "comfort" letters in customary form and at customary times and covering matters of the type customarily covered by comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may not be the Company) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders any seller of Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares; provided, however, that the Company shall have the right to approve any such underwriter with such approval not to be unreasonably withheld;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD") or such national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall request;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) Each holder of the Registrable Shares, upon receipt of any notice from the Company of any event of the kind described in Section 8(a)(viii) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii) hereof, and, if so directed by the Company, such holder shall deliver to the Company all copies, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Young America Holdings Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company Corporation shall, as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier) (it being understood that the Corporation may discontinue pursuant to Section 3 any registration);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ the "Investors' Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investors' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable SharesShares (it being understood that the Corporation may discontinue pursuant to Section 3 any registration);
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investors' Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation;
(vif) furnish to the holders of Investors holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (v) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investors holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 6, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investors, prepare and furnish to the holders of Registrable Shares included in such registration Investors a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestors holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investors or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless unless
(Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investors agree that they will, upon learning that disclosure of such Information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters in customary form and at customary times and covering matters of the type customarily covered by cold comfort letters;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders selling Registrable Shares)form;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investors holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) 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, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11(a) of the Securities Act; and
(xxip) otherwise use its reasonable best efforts to take all other steps necessary to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii6(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s 's receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii6(h) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
Appears in 1 contract
Samples: Registration Rights Agreement (Digital Theater Systems Inc)
Preparation and Filing. (a) If and whenever the Company Corporation is under an obligation pursuant to the provisions of this Agreement to use its best efforts to effect the registration of any Registrable Shares, the Company shall, Corporation shall as expeditiously as practicable:
(ia) use its reasonable best efforts to cause a registration statement that registers such Registrable Shares to become and remain effective for a period of 90 days or until the earlier of (x) one hundred and twenty (120) days following the date such registration statement became effective and (y) the date on which all of such Registrable Shares have been disposed ofof (if earlier);
(iib) furnish, at least five business days before filing a registration statement that registers such Registrable Shares, a prospectus relating thereto or any amendments or supplements relating to such a registration statement or prospectus, to one counsel selected by the Majority Demanding Holders Investors (“Shareholders’ the "Investors' Counsel”"), copies of all such documents proposed to be filed (it being understood that such five-business-day period need not apply to successive drafts of the same document proposed to be filed so long as such successive drafts are supplied to the Shareholders’ Investors' Counsel in advance of the proposed filing by a period of time that is customary and reasonable under the circumstances);
(iiic) 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 for the at least a period required under Section 8(a)(iof 90 days or until all of such Registrable Shares have been disposed of (if earlier) and to comply with the provisions of the Securities Act with respect to the sale or other disposition of such Registrable Shares;
(ivd) notify the Shareholders’ Counsel (and with respect to clause (b) or (c) below, the holders of Registrable Shares included in such registration) in writing the Investor's Counsel promptly (ai) of the receipt by the Company Corporation of any notification with respect to any comments by the Commission with respect to such registration statement or prospectus or any amendment or supplement thereto or any request by the Commission for the amending or supplementing thereof or for additional information with respect thereto, (bii) of the receipt by the Company Corporation of any notification with respect to the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or prospectus or any amendment or supplement thereto or the initiation or threatening of any proceeding for that purpose and (ciii) of the receipt by the Company Corporation of any notification with respect to the suspension of the qualification of such Registrable Shares for sale in any jurisdiction or the initiation or threatening of any proceeding for such purposes;
(ve) use its reasonable best efforts to register or qualify such Registrable Shares under such other securities or blue sky laws of such jurisdictions as the Majority Demanding Holders Investors reasonably request and do any and all other acts and things which may be reasonably necessary or advisable to enable the Shareholders Investors to consummate the disposition in such jurisdictions of the Registrable Shares included in a registrationowned by the Investors; provided, however, that the Company Corporation will not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this clause paragraph (v)e) or to provide any material undertaking or make any changes in its By-laws or Certificate of Incorporation which the Board of Directors determines to be contrary to the best interests of the Corporation or to modify any of its contractual relationships then existing;
(vif) furnish to the holders of Investor holding such Registrable Shares such number of copies of a summary prospectus, if any, or other prospectus, including a preliminary prospectus, in conformity with the requirements of the Securities Act, and such other documents as such holders Investors may reasonably request in order to facilitate the public sale or other disposition of such Registrable Shares;
(viig) without limiting subsection (ve) above, use its best efforts to cause such Registrable Shares to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company Corporation to enable the holders of Investors holding such Registrable Shares to consummate the disposition of such Registrable Shares;
(viiih) notify the holders of Investor holding such Registrable Shares included in a registration on a timely basis at any time when a prospectus relating to such Registrable Shares or is required to be delivered under the Securities Act within the appropriate period mentioned in subparagraph (a) of this Section 4, of the happening of any document related thereto event as a result of which the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing and and, at the request of the Investor, prepare and furnish to the holders of Registrable Shares included in such registration Investor a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary so that, as thereafter delivered to the offerees of such shares, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in light of the circumstances then existing;
(ixi) subject to the execution of confidentiality agreements in form and substance satisfactory to the Corporation, make available upon reasonable notice and during normal business hours, for inspection by the Majority Demanding HoldersInvestor holding such Registrable Shares, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other agent retained by the Majority Demanding Holders Investor or underwriter (collectively, the “"Inspectors”"), all pertinent financial and other records, pertinent corporate documents and properties of the Company Corporation (collectively, the “"Records”"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s Corporation's officers, directors and employees to supply all information (together with the Records, the “"Information”") reasonably requested by any such Inspector in connection with such registration statement. Any of the Information which the Company Corporation determines in good faith to be confidential, confidential and of which determination the Inspectors are so notified, shall not be disclosed by the Inspectors unless (Ai) the disclosure of such Information is necessary to avoid or correct a material misstatement or an omission in the registration statement, (Bii) the release of such Information is ordered pursuant to a subpoena or other order from a court or governmental agency or authority of competent jurisdiction, jurisdiction or (Ciii) such Information has been made generally available to the public through no breach public; the Investors agree that they will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to the Corporation and allow the Corporation, at the Corporation's expense, to undertake appropriate action to prevent disclosure of the nondisclosure obligations of the Inspectors or their Affiliates or (D) such disclosure is required to be made under applicable lawInformation deemed confidential;
(xj) use its reasonable best efforts to prevent the issuance of an order suspending the effectiveness of a registration statement, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement at the earliest possible moment;
(xi) use its reasonable best efforts to obtain from its independent certified public accountants “comfort letters” "cold comfort" letters addressed to the Corporation and any selling Stockholders in customary form and at customary times and covering matters of the type customarily covered by cold comfort lettersbenefits;
(xiik) use its reasonable best efforts to obtain from its counsel an opinion or opinions in customary form (which shall also be addressed to the holders Corporation and any selling Registrable Shares)Stockholders;
(xiii) enter into such customary agreements (including, if applicable, an underwriting agreement in customary form, including customary representations, warranties, covenants and indemnities) and take such customary action as the underwriters may reasonably request in order to expedite or facilitate the disposition of Registrable Shares;
(xiv) not later than the effective date of the applicable registration statement, provide a CUSIP number for all Registrable Shares and as applicable provide the applicable transfer agent with printed certificates for the Registrable Shares which are in a form eligible for deposit with The Depository Trust Company;
(xvl) provide a transfer agent and registrar (which may be the same entity and which may be the CompanyCorporation) for such Registrable Shares;
(xvim) promptly issue to any underwriter to which the holders of Investor holding such Registrable Shares may sell shares in such offering certificates evidencing such Registrable Shares;
(xviin) in connection with an underwritten offering, participate, to the extent reasonably requested by the managing underwriter for the offering, in customary efforts to sell Registrable Shares being offered, and cause such steps to be taken to ensure good faith participation of senior management officers of the Company in “road shows’ as is customary;
(xviii) use its reasonable best efforts to list such Registrable Shares on any national securities exchange on which any shares of the Common Shares Stock are listed;
(xix) cooperate with each holder and each underwriterlisted or, if anythe Common Stock is not listed on a national securities exchange, participating in use its best efforts to qualify such Registrable Shares for inclusion on the disposition automated quotation system of the National Association of Securities Dealers, Inc. (the "NASD"), or such other national securities exchange as the holders of a majority of such Registrable Shares and their respective counsel in connection with any filings required to be made with FINRAshall reasonably request;
(xxo) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission and make available to its securityholderssecurity holders, as soon as reasonably practicable, earnings statements (which need not be audited) covering a period of 12 months beginning with the first day of the Company’s first full calendar quarter within three months after the effective date of the subject registration statement, which earnings statements shall satisfy the provisions of Section 11 (a) of the Securities Act; and
(xxip) otherwise subject to all the other provisions of this Agreement, use its reasonable best efforts to take all other steps necessary accessory to effect the registration of such Registrable Shares contemplated hereby.
(b) . Each holder of the Registrable Shares, upon receipt of any notice from the Company Corporation of any event of the kind described in Section 8(a)(viii4(h) hereof, shall forthwith discontinue disposition of the Registrable Shares pursuant to the registration statement covering such Registrable Shares until such holder’s holders' receipt of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(viii4(h) hereof, and, if so directed by the CompanyCorporation, such holder shall deliver to the Company Corporation all copies, other than permanent file copies then in such holder’s 's possession, of the prospectus covering such Registrable Shares at the time of receipt of such notice. For the avoidance of doubt, the period during which the disposition of the Registrable Shares is discontinued pursuant to the foregoing sentence or pursuant to Section 9 hereof shall not count towards the period set forth in Section 8(a)(i) hereof.
(c) The Company shall not permit any officer, director, underwriter, broker or any other Person acting on behalf of the Company to use any Free Writing Prospectus in connection with the registration statement covering Registrable Shares, without the prior written consent of the Majority Demanding Holders which consent shall not be unreasonably withheld or delayed. Any consent to the use of a Free Writing Prospectus included in an underwriting agreement to which the Majority Demanding Holders are parties shall be deemed to satisfy the requirement of such consent.
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