Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable: (i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto; (ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown; (iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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; (iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction); (v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; (vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser; (vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers); (viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement; (ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser; (x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement; (xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings; (xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and (xiii) promptly notify Purchaser and the underwriter or underwriters, if any: (1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer; (3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and (4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction. (b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein). (c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review. (d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement. (e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period. (f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 6 contracts
Sources: Registration Rights Agreement (North American Financial Holdings, Inc.), Registration Rights Agreement (Green Bankshares, Inc.), Investment Agreement (Green Bankshares, Inc.)
Procedures. (a) In connection with the registration and sale filing of a Demand Registration Statement or Demand Offering Statement as provided by these Articles Supplementary, until the Registrable Common Stock pursuant Securities cease to this Agreementbe Registrable Securities or the Qualifiable Securities cease to be Qualifiable Securities, as applicable, the Company Corporation shall use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofto, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with furnish to each Conversion Holder of the SEC a Registration Statement with respect to Conversion Shares being registered or qualified, without charge, such Registrable Common Stock and use its reasonable best efforts to cause number of conformed copies of such Registration Statement to become effective as soon as practicable thereafter; and before filing a Demand Registration Statement or Prospectus or any amendments or supplements Demand Offering Statement, as the case may be, and of each such amendment and supplement thereto (in each case including any prospectus supplement for a shelf takedownall exhibits), furnish to Purchaser such number of copies of the prospectus contained in such Demand Registration Statement or offering circular contained in such Demand Offering Statement and any other prospectus or offering circular filed in conformity with the requirements of the Securities Act, as such Conversion Holder may reasonably request;
(ii) register or qualify all Registrable Securities or Qualifiable Securities under such other securities or “blue sky” laws of such jurisdictions as the applicable Conversion Holder(s) and the underwriter or underwriters, if any, copies of all such documents proposed the Registrable Securities being registered or Qualifiable Securities being qualified shall reasonably request, but only to be filedthe extent legally required to do so, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective registration or qualification in effect for a period of not less than 90 days, in the case of a so long as such Demand Registration Statement or an aggregate of eighteen (18) monthsDemand Offering Statement remains in effect or qualified, in as applicable, to allow the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(sapplicable Conversion Holder(s) to consummate the disposition in such jurisdictions jurisdiction of the Registrable Common Stock (providedso registered or qualified securities owned by the Conversion Holders, except that the Company will Corporation shall not for any such purpose be required to (1) qualify generally to do business as a foreign company or to register as a broker or dealer in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2Section 10(e)(ii) subject itself or to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction), or to be subject to any material tax obligation in any such jurisdiction where it is not then so subject;
(viii) notify Purchaser and any underwriter(s), the applicable Conversion Holder(s) at any time when the Corporation becomes aware during any period during which a Prospectus relating thereto prospectus for Registrable Securities or offering circular for Qualifiable Securities is required to be delivered under the Securities Act, of the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such Demand Registration Statement or the offering circular included in such Demand Offering Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made, and promptly prepare and file a supplement or prepare, file and obtain effectiveness or qualification, as applicable, of a post-effective amendment to the Demand Registration Statement or post-qualification amendment to the Demand Offering Statement and, at the request of Purchaser or any underwriter(sthe applicable Conversion Holder(s), the Company shall prepare furnish to such Conversion Holder(s) a reasonable number of copies of a supplement to, or an amendment to of, such Prospectus prospectus or offering circular as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit delivered to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition purchasers of such Registrable Common Stock (includingSecurities or such Qualifiable Securities, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant such prospectus or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock offering circular shall not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(except that iv) provide a transfer agent and registrar for: (A) all Registrable Securities covered by such Demand Registration Statement not later than the Company makes no representation effective date of such Demand Registration Statement or warranty with respect (B) all Qualifiable Securities covered by such Demand Offering Statement not later than the qualification date of such Demand Qualification Statement;
(v) list all Registrable Securities or Qualifiable Securities covered by such Demand Registration Statement or Demand Offering Statement on any securities exchange or national quotation system on which any such class of securities is then listed or quoted and cause to information relating to Purchaser furnished be satisfied all requirements and conditions of such securities exchange or national quotation system to the Company by listing or on behalf quoting of Purchaser specifically for use therein).such Registrable Securities or Qualifiable Securities that are reasonably within the control of the Corporation;
(cvi) The Company shall make available in connection with any sale, transfer or other disposition by any Conversion Holder of any Registrable Securities or Qualifiable Securities pursuant to Purchaser Rule 144 promulgated under the Securities Act, cooperate with such Conversion Holder to facilitate the timely preparation and delivery of certificates representing the Registrable Securities or Qualifiable Securities to be sold and not bearing any Securities Act legend, and enable certificates for such Registrable Securities or Qualifiable Securities to be for such number of shares and registered in such name as such Conversion Holder may reasonably request in writing at least three Business Days prior to any sale of Registrable Securities or Qualifiable Securities pursuant to Rule 144;
(ivii) notify each applicable Conversion Holder, promptly after it shall receive notice thereof, of the same is prepared and publicly distributed, filed with the SECtime when such Demand Registration Statement or Demand Offering Statement, or received by the Company, one copy of each any post-effective amendments to such Demand Registration Statement and or Demand Offering Statement, shall have become effective or qualified, as applicable, or a supplement to any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf prospectus forming part of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Demand Registration Statement or to any offering circular forming part of such Demand Offering Statement has been filed;
(viii) notify each applicable Conversion Holder of any request by the documents incorporated Commission for the amendment or supplement of such Demand Registration Statement or Demand Offering Statement, prospectus or offering circular; and
(ix) advise each applicable Conversion Holder, promptly after it shall receive notice or obtain actual knowledge thereof, of (A) the issuance of any stop order, injunction or other order or requirement by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of Commission suspending the effectiveness of each such Demand Registration Statement or any post-effective amendment suspending the qualification of such Demand Offering Statement or the filing initiation or threatening of any supplement or amendment proceeding for such purpose and use commercially reasonable efforts to such Shelf Registration Statement or prevent the issuance of any Prospectus supplement. The Company will promptly respond stop order, injunction or other order or requirement or to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration requestobtain its withdrawal, if necessarysuch stop order, as soon as practicable following injunction or other order or requirement should be issued, (B) the resolution suspension of the registration or clearance qualification of all SEC comments or, if applicable, following notification by the SEC that subject Registrable Securities or Qualifiable Securities in any state or other jurisdiction and (C) the removal of any such Registration Statement stop order, injunction or other order or requirement or proceeding or the lifting of any amendment thereto will not be subject to review.
such suspension. Each Conversion Holder shall (di) The Company may require Purchaser to furnish to the Company upon receipt of any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company Corporation of the happening of any event as a result of which the Prospectus included (or deemed includedkind described in Section 10(e)(iii) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”)hereof, Purchaser will forthwith discontinue its disposition of Registrable Common Stock Securities or Qualifiable Securities pursuant to such any applicable Demand Registration Statement for a reasonable length or Demand Offering Statement until such Conversion Holder’s receipt of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus prospectus or offering circular contemplated by Section 8(a10(e)(iii) hereof; (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3ii) Suspension Notices or notices upon receipt of any Delay Period in any twelve (12)-month period.
(f) The Company shall not permit any officer, director, underwriter, broker or any other person acting on behalf notice from the Corporation of the Company happening of any event of the kind described in clause (A) of Section 10(e)(ix) hereof, discontinue its disposition of Registrable Securities or Qualifiable Securities pursuant to use such Demand Registration Statement or Demand Offering Statement until such Holder’s receipt of the notice described in clause (C) of Section 10(e)(ix) hereof, and (iii) upon receipt of any free writing prospectus notice from the Corporation of the happening of any event of the kind described in clause (as defined B) of Section 10(e)(ix) hereof, discontinue its disposition of Registrable Securities or Qualifiable Securities pursuant to such Demand Registration Statement or Demand Offering Statemen in Rule 405 under the Securities Actapplicable state jurisdiction(s) until such Conversion Holder’s receipt of the notice described in connection with any registration statement covering Registrable Common Stock, without the prior written consent clause (C) of Purchaser and any underwriterSection 10(e)(ix) hereof.
Appears in 5 contracts
Sources: Subscription Agreement (HG Holdings, Inc.), Subscription Agreement (HG Holdings, Inc.), Subscription Agreement (HG Holdings, Inc.)
Procedures. (a) In connection with the registration and sale filing of Registrable Common Stock pursuant to the a Demand Registration Statement or Demand Offering Statement as provided by this Agreement, until the Company Registrable Securities cease to be Registrable Securities or the Qualifiable Securities cease to be Qualifiable Securities, as applicable, the Corporation shall use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofto, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with furnish to each Conversion Holder of the SEC a Registration Statement with respect to Conversion Shares being registered or qualified, without charge, such Registrable Common Stock and use its reasonable best efforts to cause number of conformed copies of such Registration Statement to become effective as soon as practicable thereafter; and before filing a Demand Registration Statement or Prospectus or any amendments or supplements Demand Offering Statement, as the case may be, and of each such amendment and supplement thereto (in each case including any prospectus supplement for a shelf takedownall exhibits), furnish to Purchaser such number of copies of the prospectus contained in such Demand Registration Statement or offering circular contained in such Demand Offering Statement and any other prospectus or offering circular filed in conformity with the requirements of the Securities Act, as such Conversion Holder may reasonably request;
(ii) register or qualify all Registrable Securities or Qualifiable Securities under such other securities or “blue sky” laws of such jurisdictions as the applicable Conversion Holder(s) and the underwriter or underwriters, if any, copies of all such documents proposed the Registrable Securities being registered or Qualifiable Securities being qualified shall reasonably request, but only to be filedthe extent legally required to do so, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective registration or qualification in effect for a period of not less than 90 days, in the case of a so long as such Demand Registration Statement or an aggregate of eighteen (18) monthsDemand Offering Statement remains in effect or qualified, in as applicable, to allow the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(sapplicable Conversion Holder(s) to consummate the disposition in such jurisdictions jurisdiction of the Registrable Common Stock (providedso registered or qualified securities owned by the Conversion Holders, except that the Company will Corporation shall not for any such purpose be required to (1) qualify generally to do business as a foreign company or to register as a broker or dealer in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2Section 10(e)(ii) subject itself or to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction), or to be subject to any material tax obligation in any such jurisdiction where it is not then so subject;
(viii) notify Purchaser and any underwriter(s), the applicable Conversion Holder(s) at any time when the Corporation becomes aware during any period during which a Prospectus relating thereto prospectus for Registrable Securities or offering circular for Qualifiable Securities is required to be delivered under the Securities Act, of the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such Demand Registration Statement or the offering circular included in such Demand Offering Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made, and promptly prepare and file a supplement or prepare, file and obtain effectiveness or qualification, as applicable, of a post-effective amendment to the Demand Registration Statement or post-qualification amendment to the Demand Offering Statement and, at the request of Purchaser or any underwriter(sthe applicable Conversion Holder(s), the Company shall prepare furnish to such Conversion Holder(s) a reasonable number of copies of a supplement to, or an amendment to of, such Prospectus prospectus or offering circular as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit delivered to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition purchasers of such Registrable Common Stock (includingSecurities or such Qualifiable Securities, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant such prospectus or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock offering circular shall not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to light of the Company by or on behalf of Purchaser specifically for use therein).circumstances under which they were made;
(civ) The Company shall make available to Purchaser provide a transfer agent and registrar for: (iA) promptly after the same is prepared and publicly distributed, filed with the SEC, or received all Registrable Securities covered by the Company, one copy of each such Demand Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf not later than the effective date of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Demand Registration Statement or (B) all Qualifiable Securities covered by such Demand Offering Statement not later than the qualification date of such Demand Qualification Statement;
(v) list all Registrable Securities or Qualifiable Securities covered by such Demand Registration Statement or Demand Offering Statement on any securities exchange or national quotation system on which any such class of securities is then listed or quoted and cause to any be satisfied all requirements and conditions of such securities exchange or national quotation system to the listing or quoting of such Registrable Securities or Qualifiable Securities that are reasonably within the control of the documents incorporated Corporation;
(vi) in connection with any sale, transfer or other disposition by reference thereinany Conversion Holder of any Registrable Securities or Qualifiable Securities pursuant to Rule 144 promulgated under the Securities Act, cooperate with such Conversion Holder to facilitate the timely preparation and delivery of certificates representing the Registrable Securities or Qualifiable Securities to be sold and not bearing any Securities Act legend, and (ii) enable certificates for such Registrable Securities or Qualifiable Securities to be for such number of copies of each Prospectus, including a preliminary Prospectus, shares and all amendments and supplements thereto and registered in such other documents name as Purchaser or any underwriter such Conversion Holder may reasonably request in order writing at least three Business Days prior to facilitate the disposition any sale of Registrable Securities or Qualifiable Securities pursuant to Rule 144;
(vii) notify each applicable Conversion Holder, promptly after it shall receive notice thereof, of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each time when such Demand Registration Statement or Demand Offering Statement, or any post-effective amendment or the filing of any supplement or amendment amendments to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond Demand Offering Statement, shall have become effective or qualified, as applicable, or a supplement to any and all comments received from the SEC, with a view towards causing each prospectus forming part of such Demand Registration Statement or to any amendment thereto to be declared effective offering circular forming part of such Demand Offering Statement has been filed;
(viii) notify each applicable Conversion Holder of any request by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following Commission for the resolution amendment or clearance supplement of all SEC comments or, if applicable, following notification by the SEC that any such Demand Registration Statement or any amendment thereto will not be subject to review.Demand Offering Statement, prospectus or offering circular; and
(dix) The Company may require Purchaser to furnish to advise each applicable Conversion Holder, promptly after it shall receive notice or obtain actual knowledge thereof, of (A) the Company issuance of any stop order, injunction or other information regarding Purchaser and order or requirement by the distribution Commission suspending the effectiveness of such securities as Demand Registration Statement or suspending the Company reasonably determinesqualification of such Demand Offering Statement or the initiation or threatening of any proceeding for such purpose and use commercially reasonable efforts to prevent the issuance of any stop order, based on injunction or other order or requirement or to obtain its withdrawal, if such stop order, injunction or other order or requirement should be issued, (B) the advice suspension of counsel, is required to be included the registration or qualification of the subject Registrable Securities or Qualifiable Securities in any Registration Statement.
state or other jurisdiction and (eC) Purchaser agrees thatthe removal of any such stop order, injunction or other order or requirement or proceeding or the lifting of any such suspension. Each Conversion Holder shall (i) upon receipt of any notice from the Company Corporation of the happening of any event as a result of which the Prospectus included (or deemed includedkind described in Section 10(e)(iii) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”)hereof, Purchaser will forthwith discontinue its disposition of Registrable Common Stock Securities or Qualifiable Securities pursuant to such any applicable Demand Registration Statement for a reasonable length or Demand Offering Statement until such Conversion Holder’s receipt of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus prospectus or offering circular contemplated by Section 8(a10(e)(iii) hereof; (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3ii) Suspension Notices or notices upon receipt of any Delay Period in any twelve (12)-month period.
(f) The Company shall not permit any officer, director, underwriter, broker or any other person acting on behalf notice from the Corporation of the Company happening of any event of the kind described in clause (A) of Section 10(e)(ix) hereof, discontinue its disposition of Registrable Securities or Qualifiable Securities pursuant to use such Demand Registration Statement or Demand Offering Statement until such Holder’s receipt of the notice described in clause (C) of Section 10(e)(ix) hereof, and (iii) upon receipt of any free writing prospectus notice from the Corporation of the happening of any event of the kind described in clause (as defined B) of Section 10(e)(ix) hereof, discontinue its disposition of Registrable Securities or Qualifiable Securities pursuant to such Demand Registration Statement or Demand Offering Statemen in Rule 405 under the Securities Actapplicable state jurisdiction(s) until such Conversion Holder’s receipt of the notice described in connection with any registration statement covering Registrable Common Stock, without the prior written consent clause (C) of Purchaser and any underwriterSection 10(e)(ix) hereof.
Appears in 5 contracts
Sources: Subscription Agreement (HG Holdings, Inc.), Subscription Agreement (HG Holdings, Inc.), Subscription Agreement (HG Holdings, Inc.)
Procedures. In the case of each registration, qualification, compliance or Public Listing effected by the Company pursuant to this Section 9, the Company will keep each Holder advised in writing as to the initiation of each such registration, qualification, compliance, and Public Listing and as to the completion thereof. With respect to a registration effected pursuant to Section 9.1, 9.2 or 9.3, the Company will, at its expense:
(a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare Prepare and file with the SEC governmental agencies with proper jurisdiction a Registration Statement registration statement with respect to such Registrable Common Stock securities and use its reasonable best efforts to cause such Registration Statement registration statement to become and remain effective as soon as practicable thereafter; and before filing a Registration Statement for at least one hundred eighty (180) days or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and until the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference distribution described in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoregistration statement has been completed;
(iib) prepare Furnish to the Holders participating in such registration and file with to the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution underwriters of the securities covered by being registered such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such reasonable number of copies of such Registration Statementthe registration statement, each amendment and supplement theretopreliminary prospectus, each Prospectus (including each preliminary Prospectus and Prospectus supplement) final prospectus and such other documents as Purchaser such Holders and any underwriter(s) underwriters may reasonably request in order to facilitate the disposition public offering of the Registrable Common Stock, 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 Companysecurities;
(ivc) use its Use all reasonable best efforts to register or and qualify the securities covered by such Registrable Common Stock registration statement under such other securities or blue sky Blue Sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may shall be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate requested by the disposition in such jurisdictions of the Registrable Common Stock (providedHolders, provided that the Company will shall not be required in connection therewith or as a condition thereto to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required or to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) file a general consent to general service of process in any such jurisdiction)states or jurisdictions;
(vd) notify Purchaser and any underwriter(s), Notify each Holder of Registrable Securities covered by such registration statement at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact Act or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus prospectus included (or deemed included) in such Registration Statement contains registration statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case light of the circumstances then existing;
(e) Use best efforts to cause all such Registrable Securities registered pursuant hereunder to be listed on a national exchange or an event described in Section 3(d)) until Purchaser is advised in writing internationally recognized stock exchange or over-the-counter market and each securities exchange on which similar securities issued by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereofare then listed; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.and
(f) The Company shall 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 permit any officer, director, underwriter, broker or any other person acting on behalf later than the effective date of the Company to use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwritersuch registration.
Appears in 4 contracts
Sources: Series C Preference Shares Purchase Agreement (Home Inns & Hotels Management Inc.), Shareholders Agreement (Home Inns & Hotels Management Inc.), Shareholders Agreement (Home Inns & Hotels Management Inc.)
Procedures. (a) In connection with the case of a registration or qualification pursuant to Section 1, the Company will keep the Holder advised in writing as to the initiation of proceedings for such registration and qualification and as to the completion thereof, and will advise the Holder, upon request, of the progress of such proceedings.
(b) At the Company's expense, the Company will keep the registration and sale of Registrable Common Stock pursuant to qualifications under this Agreement, the Company shall use its reasonable best efforts to effect the registration Agreement effective (and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file compliance with the SEC a Registration Statement with respect to Securities Act) by such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith action as may be necessary or appropriate until such time, if any as the Shares shall have been sold; provided, that the Company intends to amend the Registration Statement on Form S-3 at such time as the Company becomes eligible to use such form; and provided, further, that the Company shall not be required to keep such the Registration Statement effective for a period of not less more than 90 daystwo years from the Closing Date. The Company's obligations under this Section 3(b) shall include, in without limitation, the case filing of a Demand post-effective amendments and supplements to any registration statement or prospectus necessary to keep the Registration Statement current and the further qualification under any applicable blue sky or an aggregate of eighteen (18) monthsother state securities laws to permit such sale or distribution, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period all as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Holder. The Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) immediately notify Purchaser and any underwriter(s), the Holder at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing.
(c) Without limiting any other provision hereof, and, at the request in connection with any registration of Purchaser or any underwriter(s)Shares under this Agreement, the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) will use its reasonable best efforts to cause comply with the Securities Act, the Securities Exchange Act of 1934, as amended (the "Securities Exchange Act"), and all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities applicable rules and regulations of the same class issued by Commission.
(d) In connection with any registration of Shares under this Agreement, the Company are then listed orwill provide, if no such similar securities are then listedappropriate, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock the Shares not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stockof Shares under this Agreement, the Company will, if requested by the underwriters for any Shares included in such registration, enter into an underwriting agreement with such underwriters for such offering, such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without the prior written consent of Purchaser limitation, provisions relating to indemnification and any underwritercontribution.
Appears in 4 contracts
Sources: Registration Rights Agreement (Avteam Inc), Registration Rights Agreement (Avteam Inc), Registration Rights Agreement (Avteam Inc)
Procedures. Subject to Section 2.1(d), upon receipt of a request from the Requesting Holders pursuant to section 2.1, the Corporation will, subject to and in accordance with section 2.1, effect the Secondary Qualification as requested and, in particular, the Corporation will promptly:
(a) In effect the Secondary Qualification in one or more Canadian provinces or territories in which the Corporation is then a reporting issuer or the equivalent, prepare and file (in any event within 45 days after the later of (x) the date the request for Secondary Qualification has been delivered to the Corporation or (y) the commencement of the Qualification Period) a preliminary prospectus under and in compliance with the Securities Laws of each Canadian jurisdiction in which the Secondary Qualification is to be effected and such other related documents as may be necessary to be filed in connection with any such preliminary prospectus and will, as soon as possible after any comments of the registration Commissions have been satisfied with respect thereto, prepare and sale file under and in compliance with the Securities Laws of Registrable Common Stock pursuant such Canadian jurisdiction a prospectus, and obtain receipts therefor and use its commercially reasonable efforts to cause a receipt to be issued for such prospectus as soon as possible and will take all other steps and proceedings that may be necessary in order to permit the Qualification of the Designated Qualifiable Securities for distribution by registrants who comply with the relevant provisions of the Securities Laws of such Canadian Jurisdiction (provided that, before filing all such documents referred to in this Agreementsubsection 3.1(a), the Company shall use its reasonable best efforts Corporation will furnish to effect the registration counsel to the Requesting Holders copies thereof and the sale of such Registrable Common Stock in accordance otherwise comply with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:section 4.1 hereof);
(ib) subject to Section 2.2(b), effect a Secondary Qualification in the United States, prepare and file (in any event within 45 days after the later of (x) the date the request for Secondary Qualification has been delivered to the Corporation or (y) the commencement of the Qualification Period) with the SEC a registration statement on Form F-1 or such other form as is permitted under Securities Laws of the United States from time to time, covering the distribution of all of the Designated Qualifiable Securities and such other related documents as may be necessary to be filed in connection with any such registration statement or other form and take all other steps and proceedings that may be necessary in order to permit the Qualification of the Designated Qualifiable Securities for distribution in the United States (provided that, before filing all such documents referred to in this subsection 3.1(b), the Corporation will furnish to the counsel to the Requesting Holders copies thereof and otherwise comply with section 4.1 hereof);
(c) subject to Section 2.2(b), prepare and file with the SEC a Registration Statement applicable Commissions in the Canadian provinces and territories in which the Secondary Qualification is to be effected and, if applicable under Section 2.2(b), with the SEC, such amendments and supplements to such preliminary prospectus, final prospectus and registration statement, as may be reasonably necessary to comply with the provisions of the applicable Securities Laws with respect to the Qualification of the Designated Qualifiable Securities, and take such Registrable Common Stock steps as are reasonably necessary to maintain the effectiveness of such final prospectus and registration statement, as applicable, until the time at which the distribution of the Designated Qualifiable Securities is completed (but such requirement will only extend for a maximum period of 60 days from the date of the effectiveness of the prospectus and/or registration statement, as applicable (the “Distribution Period”);
(d) subject to Section 2.2(b), use its commercially reasonable best efforts to cause (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Holders of the Designated Qualifiable Securities covered by a registration statement under such Registration Statement to become effective other securities or “blue sky” laws of such jurisdictions of the United States, as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)designated by the Requesting Holders, furnish to Purchaser and the underwriter or underwritersacting reasonably, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus andDemand Notice, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC in those jurisdictions, such amendments (including post-effective amendments) and supplements to such Registration Statement registrations and the Prospectus used in connection therewith qualifications as may be necessary to keep maintain the effectiveness thereof during the Distribution Period, (iii) take such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Distribution Period, and (iv) take all other actions reasonably requested by Purchaser necessary or any underwriter(s) advisable to qualify the Designated Qualifiable Securities for sale in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, jurisdictions; 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company Corporation will not be required in connection therewith or as a condition thereto to (1A) qualify generally to do business as a foreign corporation or dealer in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (ivsubsection 3.1(d), (2B) subject itself to any taxation in any such jurisdiction jurisdiction, or (3C) file a general consent to general service of process in any such jurisdiction);
jurisdiction (v) notify Purchaser it being understood and any underwriter(s), at any time when a Prospectus relating thereto is agreed that the Corporation may be required to be delivered under the Securities Act, file a consent to service of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, process with respect to claims arising from the Registration Statement or any post-effective amendment, when offering of Designated Qualifiable Securities). The Corporation will promptly notify the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) Holders of the receipt by the Company Corporation of any notification with respect to the suspension of the registration or qualification of any Registrable Common Stock of the Designated Qualifiable Securities for sale under the applicable securities or “blue sky sky” laws of any jurisdiction.jurisdiction of the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose;
(be) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished furnish to the Company by Holders participating in such Qualification and the underwriter or on behalf underwriters of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributedany such distribution if any, filed with the SECupon their request, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectussuch preliminary prospectus, final prospectus, registration statement and any amendment and supplement thereto (including a preliminary Prospectus, and all amendments and supplements thereto any documents incorporated therein by reference) and such other relevant documents as Purchaser or any underwriter such Holders may reasonably request in order to facilitate the disposition distribution of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.Designated Qualifiable Securities;
(df) The Company may require Purchaser to furnish to the Company Holders participating in such Qualification, the underwriter or underwriters of any such distribution if any and such other information regarding Purchaser persons as such Holders may reasonably specify:
(i) an opinion of counsel to the Corporation addressed to the underwriter or underwriters of such distribution if any and dated the closing date of the distribution covering any opinion reasonably requested by the either of them, including, without limitation, as to the Corporation’s legal status and capacity, the Corporation’s authorized capital, the validity of the Designated Qualifiable Securities, the “eligibility for investment” of the Designated Qualifiable Securities, the enforceability of any underwriting agreement to which the Corporation is a party, and the distribution Qualification of the Designated Qualifiable Securities; and
(ii) such corporate certificates as are customarily furnished in securities offerings, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such other matters as the Company underwriters may reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.request;
(eg) Purchaser agrees that, upon notice from immediately notify the Company Holders participating in such Qualification of the happening of any event during the Distribution Period as a result of which the Prospectus included preliminary prospectus, final prospectus or the registration statement, each as then in effect, would include a misrepresentation (insofar as such misrepresentation relates to or deemed includedwas made by the Corporation);
(h) otherwise use its best efforts to comply with all applicable published policies, rules, regulations, forms, instruments, blanket orders and rulings of the applicable Commissions and, if applicable under Section 2.2(b), the SEC, and any stock exchange and over-the-counter market on which the Common Shares are then listed;
(i) provide a transfer agent and registrar for such Common Shares no later than the closing date of the offering;
(j) cause all such Designated Qualifiable Securities to be listed on each securities exchange or over-the-counter market on which the Common Shares are then listed;
(k) if the distribution is an underwritten offering, enter into an underwriting agreement with the underwriter or underwriters for the distribution, such agreement to contain such representations and warranties by the Corporation and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions and indemnification agreements consistent with section 4.2 and such other documents on such terms and conditions as are customary in secondary offerings and take all such other actions as permitted by law as the Holders participating in such Qualification or the underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the distribution of the Designated Qualifiable Securities; and
(l) in such Registration Statement contains an untrue statement the event of the issuance of any order or ruling suspending the effectiveness of a material fact prospectus receipt or omits registration statement or any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that order suspending or preventing the use of any prospectus or registration statement or suspending the Prospectus may be resumed and is furnished with a supplemented Qualification of any of the Designated Qualifiable Securities by such prospectus or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement registration statement in any applicable province or territory of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days Canada or in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension NoticeUnited States, the Company shall extend Corporation will notify the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving Holders participating in such Qualification of such Suspension Notice event and use its commercially reasonable efforts promptly to and including obtain the date Purchaser either is advised by the Company that the use withdrawal of the Prospectus may be resumed such order or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodruling.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 4 contracts
Sources: Registration Rights Agreement (Forbes Energy Services Ltd.), Subscription Agreement (Forbes Energy Services Ltd.), Registration Rights Agreement (Forbes Energy Services Ltd.)
Procedures. (a) In connection with the case of each registration and sale of Registrable Common Stock or qualification pursuant to this AgreementSection 17.1, the Company shall use its reasonable best efforts will keep all holders of Warrants or Shares advised in writing as to effect the initiation of proceedings for such registration and qualification and as to the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition completion thereof, and pursuant thereto will advise any such holder, upon request, of the Company shall as expeditiously as reasonably practicable:progress of such proceedings.
(ib) prepare and file with At the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)Company's expense, furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes keep each registration and additions thereto as reasonably requested by Purchaser qualification under this Section 17 effective (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file in compliance with the SEC Securities Act) by such action as may be necessary or appropriate for a period of one hundred twenty (120) days after the effective date of such registration statement, including, without limitation, the filing of posteffective amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be any registration statement or prospectus necessary to keep the registration statement current and the further qualification under any applicable state securities laws to permit such Registration Statement effective for sale or distribution, all as requested by such holder or holders, provided, that such 120-day period shall be extended by the number of days (i) that a period of not less than 90 days, stop order or similar proceeding is in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete effect which prohibits the distribution of the securities covered by Shares registered pursuant to this Section 17 and (ii) from and including the date that each holder on whose behalf Shares have been registered pursuant to this Section 17 shall have received a notice delivered pursuant to paragraph (c) below until the date on which such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such holders shall have received a reasonable number of copies of such Registration Statement, each a supplement to or an amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, prospectus so that the Company prospectus thereafter shall have no such obligation to furnish copies not include an untrue statement of a final prospectus if material fact or omit to state any material fact required to be stated therein or necessary to make the conditions statements therein not misleading; in light of Rule 172(c) under the Securities Act are satisfied by the Company;circumstances then existing.
(ivc) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the The Company will not be required immediately notify each holder on whose behalf Shares have been registered pursuant to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), Section 17 at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus prospectus included (or deemed included) in such Registration Statement contains registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.
(a “Suspension Notice”)d) If any registration under this Section 17 is in connection with an underwritten offering, Purchaser the Company will forthwith discontinue disposition of Registrable Common Stock furnish to each holder on whose behalf Shares have been registered pursuant to this Section 17 a signed counterpart, addressed to such Registration Statement holder, of (i) an opinion of counsel for the Company, dated the effective date of such registration statement, and (ii) a reasonable length so called "cold comfort" letter signed by the independent public accountants who have certified the Company's financial statements included in such registration statement, and such opinion of time not counsel and accountants' letter shall cover substantially the same matters with respect to exceed 10 days such registration statement (45 days and the prospectus included therein) and, in the case of an event described such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to underwriters in connection with underwritten public offerings of securities.
(e) Without limiting any other provision hereof, in connection with any registration of Shares under this Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice17, the Company shall extend will comply with the Securities Act, the Securities Exchange Act and all applicable rules and regulations of the Commission, and will make generally available to its securities holders, as soon as reasonably practicable, an earnings statement covering a period of time during which at least twelve (12) months, beginning with the Company is required to maintain first month of the applicable Registration Statements first fiscal quarter after the effective pursuant to this Agreement by the number of days during the period from and including the date of such registration statement, which earnings statement shall satisfy the giving provisions of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use Section 11(a) of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodSecurities Act.
(f) 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 (as defined in Rule 405 under the Securities Act) in In connection with any registration statement covering Registrable Common Stockof Shares under this Section 17, the Company will provide a transfer agent and registrar for the Shares not later than the effective date of such registration statement.
(g) In connection with any underwritten registration of Shares under this Section 17, the Company will, if requested by the underwriters for any Shares included in such registration, enter into an underwriting agreement with such underwriters for such offering, such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, provisions relating to indemnification and contribution. The holders on whose behalf Shares are to be distributed by such underwriters shall be parties to any such underwriting agreement, and the prior written consent representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of Purchaser such underwriters shall also be made to and for the benefit of such holders of Warrants or Shares and the conditions precedent to the obligations of such underwriters under such underwriting agreement shall be conditions precedent to the obligations of such holders of Warrants or Shares. The Company shall cooperate with such holders of Warrants or Shares in order to limit any representations or warranties to, or agreements with, the Company or such underwriters to be made by such holders only to those representations, warranties or agreements regarding such holder, such holder's Shares and such holder's intended method of distribution and any underwriterother representation required by law. Such underwriting agreement shall comply with Section 17.4 hereof.
(h) Upon request by any holder of Warrants or Shares who has requested that their shares be included in a registration, the Company will give such holder and their underwriters, if any, and their respective counsel and accountants, (i) such information regarding the preparation of such registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, as such holder may specify, and (ii) opportunities to discuss the business of the Company with its officers, its counsel and the independent public accountants who have certified its financial statements, as shall be necessary, in the opinion of such holders or such underwriters or their respective counsel, in order to conduct a reasonable and diligent investigation within the meaning of the Securities Act. Without limiting the foregoing, each registration statement, prospectus, amendment, supplement or any other document filed with respect to a registration under this Section 17 shall be subject to review and reasonable approval by the holders registering Shares in such registration and by their counsel.
(i) The Company will cause all of the Shares registered pursuant to this Section 17 to be accepted for quotation to the same extent as similar securities issued by the Company.
Appears in 3 contracts
Sources: Note and Warrant Purchase Agreement (Integral Vision Inc), Note and Warrant Purchase Agreement (Integral Vision Inc), Note and Warrant Purchase Agreement (Integral Vision Inc)
Procedures. (a) In connection with The Corporation will, subject to the registration and sale of Registrable Common Stock pursuant to this Agreementlimitations provided herein, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and possible: use its reasonable best efforts to cause such Registration Statement to become effective and to remain continuously effective for a period that will terminate upon the earlier of (i) the date on which all Registrable Securities, covered by such Registration Statement, as soon as practicable amended from time to time, have been sold, or (ii) the date on which all Registrable Securities may be sold pursuant to Rule 144(k) (the "Registration Period"); prepare and file with the SEC the requisite registration statement to effect such registration, and thereafter, use reasonable efforts to cause such registration statement to become effective; and provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (thereto, including any prospectus supplement for a shelf takedown)documents incorporated by reference, the Corporation will furnish to Purchaser counsel to the holders of Registrable Securities and the managing underwriter or underwriters, if any, draft copies of all such documents proposed to be filedfiled (other than exhibits, including unless so requested) a reasonable time prior thereto, which documents incorporated by reference in will be subject to the Prospectus and, if requested by Purchaser, the exhibits incorporated by referencereasonable review of such counsel and such holders and underwriters, and Purchaser (will notify each holder of any stop order issued by the SEC in connection therewith and the underwriter(s), if any) shall have the opportunity take all reasonable actions required to review and comment thereon, and the Company will make remove such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) stop order; prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be reasonably necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, registration statement; provided however that the Company shall have no Corporation may, at any time, delay the filing or suspend the effectiveness of any registration under this Agreement, or without suspending such obligation effectiveness, instruct the holders of Registrable Securities not to furnish copies of a final prospectus if the conditions of Rule 172(c) under the sell any Registrable Securities Act are satisfied by the Company;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation included in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offeringregistration, (i) enter into such customary agreements (if the Corporation shall have determined upon the advice of counsel that the Corporation would be required to disclose any actions taken or proposed to be taken by the Corporation in good faith and for valid business reasons, including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions acquisition or divestiture of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such periodassets, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of disclosure would have a material fact or omit to state a material fact required to be stated therein, or necessary to make adverse effect on the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by Corporation or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributedsuch actions, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 3 contracts
Sources: Registration Rights Agreement (Celsius Holdings, Inc.), Merger Agreement (Celsius Holdings, Inc.), Merger Agreement (Celsius Holdings, Inc.)
Procedures. (a) In connection with the registration and sale of the Registrable Common Stock Securities pursuant to this Agreement, the Company Laser shall use its reasonable best efforts to effect the registration and the sale of such the Registrable Common Stock Securities in accordance with Purchaser’s Parent Holdings' intended methods method of disposition thereofthereof and, and pursuant thereto the Company shall as expeditiously as reasonably practicablein connection therewith, Laser shall:
(i1) prepare and file with the SEC a the Shelf Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such the Shelf Registration Statement to become and remain effective as soon as practicable thereafter; in accordance with Sections 2.1(a) and (b) above;
(2) prepare and file with the SEC amendments and supplements to the Shelf Registration Statement and the prospectuses used in connection therewith in accordance with Section 2.1(c) above;
(3) before filing a with the SEC the Shelf Registration Statement or Prospectus prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, Laser shall furnish to Purchaser one (1) counsel selected by Parent Holdings and one (1) counsel for the underwriter or underwriterssales or placement agent, if any, copies in connection therewith, drafts of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, filed and Purchaser (and the underwriter(s), if any) shall have the provide such counsel with a reasonable opportunity to for review thereof and comment thereon, such review to be conducted and such comments to be delivered with reasonable promptness;
(4) promptly (i) notify Parent Holdings of each of (w) the Company will make filing and effectiveness of the Shelf Registration Statement and each prospectus and any amendments or supplements thereto, (x) the receipt of any comments from the SEC or any state securities law authorities or any other governmental authorities with respect to any such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Shelf Registration Statement or amendment thereto prospectus or any Prospectus amendments or supplements thereto, (y) any oral or written stop order with respect to such registration, any suspension of the registration or qualification of the sale of the Registrable Securities in any jurisdiction or any supplement initiation or threatening of any pro- ceedings with respect to any of the foregoing, and (z) of the happening of any event that requires the making of any changes in such Shelf Registration Statement, prospectus or documents incorporated or deemed to be incorporated therein by reference so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) use reasonable best efforts to obtain the withdrawal of any order suspending the registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any related prospectus in any jurisdiction with respect thereto;
(ii5) prepare furnish to Parent Holdings, the underwriters or the sales or placement agent, if any, and file with one (1) counsel for each of the SEC such amendments and supplements to such foregoing, a conformed copy of the Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen each amendment and supplement thereto (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period including all exhibits thereto) and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such additional number of copies of such Shelf Registration Statement, each amendment and supplement theretothereto (in such case, each Prospectus without such exhibits), the prospectus (including each preliminary Prospectus prospectus) included in such Shelf Registration Statement and Prospectus supplement) prospectus supplements and all exhibits thereto and such other documents as Purchaser and any underwriter(s) Parent Holdings, its underwriters, agent or such counsel may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 CompanyParent Holdings;
(iv6) in connection with a sale of Registrable Securities by or through an underwriter, if requested by Parent Holdings or the managing underwriter or underwriters of a Rule 415 Offering, subject to approval of counsel to Laser in its reasonable judgment, promptly incorporate in a prospectus, supplement or post-effective amendment to the Shelf Registration Statement such information concerning underwriters and the plan of distribution of the Registrable Securities as such managing underwriter or underwriters or Parent Holdings reasonably shall furnish to Laser in writing and such request to be included therein, including, without limitation, information with respect to the number of Registrable Securities being sold by Parent Holdings to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus, supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such prospectus, supplement or post-effective amendment;
(7) use its reasonable best efforts to register or qualify such the Registrable Common Stock Securities for offer and sale under such other securities or "blue sky sky" laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) Parent Holdings reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) Parent Holdings to consummate the disposition in such jurisdictions of in which the Registrable Common Stock Securities are to be sold and keep such registration or qualification in effect for as long as the Shelf Registration Statement remains effective under the Securities Act (provided, provided that the Company will Laser shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)paragraph, (2ii) subject itself to taxation in any such jurisdiction where it would not otherwise be subject to taxation but for this paragraph or (3iii) consent to the general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject to general service of process but for this paragraph);
(v) 8) notify Purchaser and any underwriter(s)Parent Holdings, at any time when a Prospectus prospectus relating thereto to the Shelf Registration Statement is required to be delivered under the Securities Act, upon the discovery that, or of the occurrence happening of any event as a result of which any Prospectus which, the Shelf Registration Statement, as then in effect, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall and promptly prepare and furnish to Parent Holdings a supplement or amendment to the prospectus contained in the Shelf Registration Statement so that the Shelf Registration Statement shall not, and such Prospectus so that, prospectus as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities shall not, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(vi9) cause all of the Registrable Securities to be listed on each national securities exchange and included in each established over-the-counter market on which or through which the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Laser Common Stock is then listed or traded;
(including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s10) in connection with performing due diligence) and (iii) cause its counsel to issue opinions a sale of counsel in formRegistrable Securities by or through an underwriter, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by PurchaserParent Holdings, any underwriter participating in any disposition pursuant to a the Shelf Registration Statement, and any attorney, accountant or other agent retained by Purchaser Parent Holdings or its underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the CompanyLaser as shall be reasonably necessary to enable either of them to exercise their due diligence responsibility, and cause the Company’s Laser's officers, directors, employees employees, attorneys and independent accountants to supply all information reasonably requested by PurchaserParent Holdings, any underwriterits underwriters, any attorneyattorneys, any accountant accountants or any agent agents in connection with such the Shelf Registration Statement; information which Laser determines, in good faith, to be confidential shall not be disclosed by such persons unless (i) the disclosure of such information is required by applicable federal securities laws or is necessary to avoid or correct a misstatement or omission in such Shelf Registration Statement or (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; Parent Holdings agrees, on its own behalf and on behalf of all of its underwriters, accountants, attorneys and agents, that the information obtained by any of them as a result of such inspections shall be deemed confidential unless and until such is made generally available to the public; Parent Holdings further agrees, on its own behalf and on behalf of all of its underwriters, accountants, attorneys and agents, that Parent Holdings will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to Laser and allow Laser, at Parent Holdings' expense, to undertake appropriate action to prevent disclosure of the information deemed confidential; nothing contained herein shall require Laser to waive any attorney-client privilege or disclose attorney work product;
(ix11) use its reasonable best efforts to cause comply with all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior applicable laws related to the pricing of any underwritten offering, immediately prior to effectiveness of each Shelf Registration Statement (and, in the case of an underwritten offering, at the time of closing of the and offering and sale of Registrable Common Stock pursuant thereto)securities and all applicable rules and regulations of governmental authorities in connection therewith (including, letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriterwithout limitation, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable Exchange Act, and the rules and regulations adopted promulgated by the SEC thereunder, SEC) and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement security holders as soon as reasonably practicable (but in any event not later than fifteen (15) months after the end effectiveness of such period, which the Shelf Registration Statement) an earnings statement shall satisfy the requirements of an earning statement under Laser and its subsidiaries complying with Section 11(a) of the Securities Act;
(12) in connection with a sale of Registrable Securities by or through an underwriter, use reasonable best efforts to furnish to Parent Holdings a signed counterpart of (x) an opinion of counsel for Laser (including a "Rule 10b-5" opinion) and (y) a "comfort" letter signed by the independent public accountants who have certified Laser's financial statements included or incorporated by reference in such registration statement, covering such matters with respect to such registration statement and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities for the account of, or on behalf of, an issuer of common stock, such opinion and comfort letters to be dated the date that such opinion and comfort letters are customarily dated in such transactions; and
(xiii13) promptly notify Purchaser and take other actions as Parent Holdings or the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to expedite or facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewSecurities.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 3 contracts
Sources: Merger Agreement (CLN Holdings Inc), Merger Agreement (Coleman Worldwide Corp), Merger Agreement (Coleman Co Inc)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.eighteen
Appears in 3 contracts
Sources: Registration Rights Agreement (North American Financial Holdings, Inc.), Registration Rights Agreement (North American Financial Holdings, Inc.), Investment Agreement (North American Financial Holdings, Inc.)
Procedures. (a) In connection with Whenever the registration and sale of Registrable Common Stock Company pursuant to this Agreementthe NTT Law declines to register particular Shares presented by the Custodian for registration in the name of the Depositary or its nominee on its Share register on the basis that such registration would cause such Shares to exceed (when aggregated with all Foreign-Owned Shares) the Foreign Ownership Limitation and notifies the Depositary in writing of such refusal, the Company shall Depositary agrees to use its best reasonable best efforts to effect (i) determine the registration and Holder of the sale ADRs evidencing the ADSs representing such Shares, (ii) stop transfer of such Registrable Common Stock ADRs and disregard any voting instructions in respect thereof, (iii) notify such Holder that such ADRs may not be transferred or voted, that such Shares will be delivered to such Holder at the office of the Custodian or, at the discretion of the Depositary and to the extent practicable, will be sold by the Depositary on behalf of such Holder in accordance with Purchaser’s intended methods of disposition thereofthis paragraph (6) and that such ADRs will be canceled, (iv) so deliver such Shares, or at its discretion and pursuant thereto to the Company shall as expeditiously as reasonably extent practicable:
, sell (iby public or private means) prepare such Shares and file with the SEC a Registration Statement with respect distribute to such Registrable Common Stock and use its reasonable best efforts to cause Holder the net proceeds of such Registration Statement to become effective sale as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement cash distribution on Deposited Securities pursuant to paragraph (10) and (v) cancel such ADRs. To the extent that the Depositary determines that it is not practicable to determine the Holder of the ADRs evidencing the ADSs representing such Shares or an aggregate to implement any of eighteen (18) months, the other procedures described in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act foregoing sentence with respect to such Holder, the disposition Depositary agrees, on behalf of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement andHolders, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its best reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into purchase ADRs in an amount equal to the number of ADRs evidencing ADSs representing such customary agreements (including underwriting agreements in customary form), Shares; (ii) take all sell (by public or private means) such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) Shares and (iii) cause its counsel to issue opinions of counsel in formcancel such ADRs. The Depositary may deduct any charge, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant fee or other agent retained by Purchaser expense arising from or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement purchase (including the purchase price of such ADRs), sale and cancellation from the net proceeds of such sale, the Holders remaining liable for any deficiency. The Depositary may deduct from any distributions on or to any in respect of Deposited Securities, or may sell by public or private sale for the account of the documents incorporated by reference thereinHolders any part or all of Deposited Securities, and (ii) may apply such number deduction or the proceeds of copies any such sale in payment of each Prospectus, including a preliminary Prospectussuch deficiency, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by proportionately reduce the number of days during the period from ADS evidenced by ADRs then issued and including the date outstanding to reflect any such sale of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodshares.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 3 contracts
Sources: Deposit Agreement (JPMorgan Chase Bank, N.A. - ADR Depositary), Deposit Agreement (JPMorgan Chase Bank, N.A. - ADR Depositary), Deposit Agreement (Nippon Telegraph & Telephone Corp)
Procedures. (a) In connection with the case of each registration and sale of Registrable Common Stock by the Company pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicableshall:
(ia) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts efforts, if requested, prior to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus prospectus or any amendments amendment or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, furnish without charge to Purchaser the selling Holders (and the underwriter or underwriterstheir legal counsel) and each Underwriter (and its legal counsel), if any, of the Registrable Securities covered by such Registration Statement copies of such Registration Statement (in each case including all such exhibits thereto and documents incorporated by reference therein), prospectus (including each preliminary prospectus), any amendment or supplement thereto as proposed to be filed, including and such other documents incorporated as the Holders (or their legal counsel) of Registrable Securities included in such registration may request in order to facilitate the disposition of the Registrable Securities owned by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoHolders;
(iib) use reasonable best efforts to prepare and file with the SEC such amendments amendments, including post-effective amendments, and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, and in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply compliance with the provisions of the Securities Act with respect to the disposition of until all Registrable Securities and other securities covered by such Registration Statement during such period have been disposed of in accordance with the intended methods of disposition by Purchaser the Holders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iiic) use reasonable best efforts to furnish to Purchaser the Holders of Registrable Securities covered by such Registration Statement such number of conformed copies of such Registration Statement and of each such amendment, including any post-effective amendments, and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such Registration Statement, each amendment and supplement thereto, each Prospectus Statement (including each preliminary Prospectus prospectus and Prospectus supplementany summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, and such other documents documents, as Purchaser and any underwriter(s) the Holders may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Companyrequest;
(ivd) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock Registration Statement under such other securities or blue sky laws of such jurisdictions as the Holders shall reasonably request (domestic the “Blue Sky Laws”), to keep such registration or foreign) qualification in effect for so long as Purchaser such Registration Statement remains in effect, and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) the Holders to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by the Holders, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 5.2(d) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction);
(ve) notify Purchaser enter into customary agreements (including, if applicable, an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities. The representations, warranties and covenants of the Company in any underwriter(s)underwriting agreement which are made to or for the benefit of any Underwriters, at any time when a Prospectus relating thereto is to the extent applicable, shall also be made to and for the benefit of the Holders of Registrable Securities included in such Registration Statement. No Holder of Registrable Securities included in such Registration Statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable, with respect to such Holder’s organization, good standing, authority, title to Registrable Securities, lack of conflict of such sale with such Holder’s material agreements and organizational documents, and with respect to written information relating to such Holder that such Holder has furnished in writing expressly for inclusion in such Registration Statement. Holders of Registrable Securities shall agree to such covenants and indemnification and contribution obligations for selling stockholders as are customarily contained in agreements of that type;
(f) use commercially reasonable efforts to cause all Registrable Securities covered by such Registration Statement to be delivered under registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Holders thereof to consummate the disposition of such Registrable Securities;
(g) promptly, and in no event more than two (2) business days after such filing, notify the Holders of Registrable Securities Actincluded in such Registration Statement of such filing, and shall further notify such Holders promptly and confirm such advice in writing in all events within two (2) business days of the occurrence of any event as a result of which the following: (i) when such Registration Statement becomes effective; (ii) when any Prospectus contains an untrue statement post-effective amendment to such Registration Statement becomes effective; (iii) the issuance or threatened issuance by the Commission of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), stop order (and the Company shall prepare take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the Commission for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information or of the occurrence of an event requiring the preparation of a supplement or amendment to such Prospectus prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of the securities covered by such Registration Statement, such Prospectus shall prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and promptly make available to the Holders of Registrable Securities included in such Registration Statement any such supplement or amendment; except that before filing with the Commission a Registration Statement or prospectus or any amendment or supplement thereto, including documents incorporated by reference, the Company shall furnish to the Holders of Registrable Securities included in such Registration Statement and to the legal counsel for any such Holders, copies of all such documents proposed to be filed sufficiently in advance of filing to provide such Holders and legal counsel with a reasonable opportunity to review such documents and comment thereon, and the Company shall not file any Registration Statement or prospectus or amendment or supplement thereto, including documents incorporated by reference, to which such holders or their legal counsel shall object.
(h) after the filing of the Registration Statement, promptly notify the Holders of any stop order issued or, to its knowledge, threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to provide and cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide maintained a transfer agent and registrar for all Registrable Securities covered by such Registrable Common Stock Registration Statement from and after a date not later than the effective date of such Registration Statement;
(xij) use reasonable best efforts to list all Registrable Securities covered by such Registration Statement on any national or regional securities exchange or quoting service on which any of the Common Stock is then listed or quoted, including any over-the-counter trading activity;
(k) the Chief Executive Officer of the Company and all other officers and members of the management of the Company shall cooperate fully in any offering of Registrable Securities hereunder, which cooperation shall include, without limitation, the preparation of the Registration Statement with respect to such offering and all other offering materials and related documents, and participation in meetings with Underwriters, attorneys, accountants and potential investors;
(l) make reasonably available for inspection by the Holders requesting registration of Registrable Securities, any Underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other professional retained by the Holders or Underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”) as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any Inspectors in connection with such Registration Statement. Records which the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (iii) such Holder is bound by a confidentiality obligation to the Company. The Holders agree that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its affiliates unless and until such is made generally available to the public;
(m) if requestedrequested by the Holder, cause use commercially reasonable efforts to be deliveredfurnish to each Holder of Registrable Securities included in any Registration Statement a signed counterpart, immediately prior addressed to such Holder, of (i) any opinion of counsel to the pricing of Company delivered to any underwritten offering, immediately prior to effectiveness of each Registration Statement Underwriter and (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters ii) any comfort letter from the Company’s independent registered public accountants addressed delivered to Purchaser and any Underwriter. In the event no legal opinion is delivered to any Underwriter, the Company shall furnish to each underwriterHolder of Registrable Securities included in such Registration Statement, if any, stating at any time that such accountants are independent public accountants within Holder elects to use a prospectus, an opinion of counsel to the meaning of Company to the Securities Act effect that the Registration Statement containing such prospectus has been declared effective and the that no stop order is in effect;
(n) otherwise use commercially reasonable efforts to comply with all applicable rules and regulations adopted by of the SEC thereunderwith respect to the disposition of all Registrable Securities covered by such Registration Statement, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated the Company’s stockholders, as soon as practicable, an earnings statement covering a period of twelve (which need not be audited12) for the 12 months, beginning within three (3) months beginning after the effective date of a the Registration Statement as soon as reasonably practicable after the end of such periodStatement, which earnings statement shall satisfy the requirements provisions of an earning statement under Section 11(a) of the Securities ActAct and Rule 158 thereunder; and
(xiiio) promptly notify Purchaser and upon the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification permitted transfer of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received Securities by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), Holders in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, connection with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Noticeregistration hereunder, the Company shall extend furnish unlegended certificates representing ownership of the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement Registrable Securities in such denominations as shall be requested by the number of days during Holders or the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodUnderwriters.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 3 contracts
Sources: Registration Rights Agreement (Lighting Science Group Corp), Registration Rights Agreement (RW LSG Holdings LLC), Registration Rights Agreement (Lighting Science Group Corp)
Procedures. Upon receipt of a request from the Holders pursuant to Section 2.2, the Corporation will, subject to Section 2.2, effect the Secondary Registration as requested. In particular, the Corporation will, in each case as applicable:
(a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its commercially reasonable best efforts to effect the registration prepare and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereoffile, and pursuant thereto the Company shall as expeditiously soon as reasonably practicable:, in the English language and, if required, French language, a Prospectus Supplement under and in compliance with Applicable Securities Laws of each Canadian jurisdiction in which the Secondary Registration is to be effected and such other related documents as may be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit a registered public offering (whether or not underwritten) of the Designated Registrable Securities by the Holders in the applicable Canadian jurisdictions;
(ib) use commercially reasonable efforts to prepare and file, as soon as reasonably practicable, with the SEC a Prospectus Supplement, covering the distribution of the Designated Registrable Securities and such other related documents as may be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit a registered public offering (whether or not underwritten) of the Designated Registrable Securities by the Holders in the United States;
(c) use commercially reasonable efforts to prepare and file with the SEC a applicable Canadian Securities Regulatory Authorities in the Canadian jurisdictions in which the Secondary Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed is to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, effected and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith Supplement, as may be reasonably necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Applicable Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, Laws with respect to the Registration of Designated Registrable Securities, and take such steps as are reasonably necessary to maintain the effectiveness of the Prospectus during the Registration Period;
(d) notify promptly each Holder of Registrable Securities under a Registration Statement or Canadian Base Prospectus and, if requested by such Holder, promptly confirm such advice in writing
(i) when a Registration Statement or Canadian Base Prospectus has become effective and when any post-effective amendment, when the same has amendments or supplements thereto become effective;
; (2ii) of any written request by the SEC SEC, any U.S. state securities authority or any Canadian Securities Regulatory Authority for additional information after the Registration Statement or Canadian Base Prospectus has become effective or for any post-effective amendments or supplements to the a Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
Canadian Base Prospectus; (3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC SEC, any U.S. state securities authority or any Canadian Securities Regulatory Authority of any stop order suspending the effectiveness of a Registration Statement or Canadian Base Prospectus or the initiation of any proceedings for that purpose; (iv) if, between the effective date of a Registration StatementStatement or Canadian Base Prospectus and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Corporation contained in any underwriting agreement or similar agreement, if any, relating to the offering cease to be true and correct in all material respects; and
(4v) of the happening of any event or the discovery of any facts during the period a Registration Statement or Canadian Base Prospectus is effective as a result of which such Registration Statement or Canadian Base Prospectus or any document incorporated by reference therein contains any misrepresentation; (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (vii) if for any other reason it shall be necessary to amend or supplement the Registration Statement, the Prospectus or the Canadian Base Prospectus in order to comply with Applicable Securities Laws; (viii) of the filing of any post-effective amendment to the Registration Statement or Canadian Base Prospectus;
(e) use commercially reasonable efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Holders of the Designated Registrable Common Stock Securities covered by the Prospectus Supplement under such other securities or “blue sky” laws of such jurisdictions as designated by the Holders, acting reasonably, in the request for Demand Registration, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be reasonably necessary to maintain the effectiveness until the time at which the distribution of the Designated Registrable Securities is completed (the “Distribution Period”), (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Distribution Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Designated Registrable Securities for sale in such jurisdictions; provided, however, that the Corporation shall not be required in connection therewith or as a condition thereto to (A) qualify to do business as a foreign corporation or dealer in any jurisdiction where it would not otherwise be required to qualify but for this subsection 3.1(d), (B) subject itself to any taxation in any such jurisdiction, or (C) consent to general service of process in such jurisdiction. The Corporation shall promptly notify the Holders of the receipt by the Corporation of any notification with respect to the suspension of the registration or qualification of any of the Designated Registrable Securities for sale under the applicable securities or “blue sky sky” laws of any jurisdiction.jurisdiction or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose;
(bf) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished furnish to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement Holders and any amendment theretounderwriter or underwriters of any such distribution, each preliminary Prospectus and Prospectus and each amendment or supplement theretoupon their request, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each the Base Prospectus, any Prospectus Supplement and any amendment and supplement thereto (including a preliminary Prospectus, and all amendments and supplements thereto any documents incorporated therein by reference) and such other relevant documents as Purchaser or any underwriter the Holders may reasonably request in order to facilitate the disposition distribution of the Designated Registrable Common Stock. The Company will promptly notify Purchaser Securities;
(g) furnish to the Holders and any underwriter or underwriters of the effectiveness any such distribution, upon their request, at least one conformed copy of each Registration Statement or and each Canadian Base Prospectus and any post-effective amendment or to either of them, including financial statements and schedules (including all documents incorporated therein by reference and all exhibits thereto);
(h) furnish to counsel for the filing Holders copies of any comment letters relating to the selling Holders received from the SEC or any Canadian Securities Regulatory Authorities or any other request by the SEC or any Canadian Securities Regulatory Authorities for amendments or supplements to the Base Prospectus or any Prospectus Supplement or for additional information relating to the selling Holders, provided that the Corporation shall not be required to provide copies of any non-substantial routine correspondence with the SEC or Canadian Securities Regulatory Authorities that does not specifically relate to the selling Holders or any information the disclosure of which would be restricted by applicable privacy laws or other laws governing the treatment of personal information;
(i) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Base Prospectus or any Prospectus Supplement at the earliest possible moment;
(j) cooperate with the selling Holders to facilitate the timely preparation and delivery of certificates and opinions of counsel necessary to remove any restrictive legends associated with the Registrable Securities to enable such securities to be sold by the selling Holders (whether in a registered or unregistered transaction) as the selling Holders may reasonably request;
(k) furnish to the Holders and any underwriter or underwriters of any such distribution and such other persons as the Holders may reasonably specify:
(i) an opinion or opinions of counsel to the Corporation addressed to the Holders and the underwriter or underwriters of such distribution and dated the closing date of the distribution, which opinion(s) shall be in form, scope and substance customary for an offering of the type contemplated by the applicable Secondary Registration, having regard to the form of opinions given by the Corporation’s counsel in prior public offerings by the Corporation, and reasonably satisfactory to the Holders and any underwriters;
(ii) a customary “comfort letter” addressed to the Holders (subject to the auditors’ receipt of required representation letters from the Holders) and the underwriter or underwriters dated the date of the Prospectus Supplement and the closing date of the distribution signed by the auditors of the Corporation (and, if necessary, any other auditors of any subsidiary of the Corporation or of any business acquired by the Corporation for which financial statements are, or are required to be, included in the Prospectus), in customary form and covering such matters of the type customarily covered by “comfort letters” as the Holder and managing underwriter reasonably requests;
(iii) if a Prospectus Supplement is filed in Quebec, opinions of Quebec counsel to the Corporation and the auditors of the Corporation addressed to the Holders and the underwriter or underwriters of such distribution relating to the translation of the Prospectus and compliance with French language laws, such opinions being dated the dates of the preliminary prospectus supplement, the final prospectus supplement and closing; and
(iv) such corporate certificates as are reasonably requested in connection with such distribution, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such other matters as the Holders may reasonably request
(l) make available to the underwriter or underwriters in connection with any Secondary Registration reasonable access to the senior management of the Corporation for investor and analyst calls and meetings with respect to such Secondary Registrations;
(m) use commercially reasonable efforts to provide any additional cooperation reasonably requested by the underwriters in the offering, marketing or selling of the Registrable Securities;
(n) as promptly as practicable after delivery of a notice under Section 3.1(d)(v), use commercially reasonable efforts to prepare a supplement or amendment to such Shelf the Registration Statement or Prospectus, as applicable, or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities, such Registration Statement or Prospectus will not include a misrepresentation;
(o) otherwise use its commercially reasonable efforts to comply with all Applicable Securities Laws;
(p) provide a transfer agent and registrar for such Common Shares no later than the closing date of the offering;
(q) enter into customary agreements (including an underwriting agreement with the underwriter or underwriters), such agreements to contain such representations and warranties by the Corporation and such other terms and conditions as are customary for such offering (including customary indemnity and contribution provisions), having regard to the form of underwriting agreements entered into by the Corporation in prior public offerings, and take all such other actions as permitted by law as the Holders or the underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the distribution of the Designated Registrable Securities;
(r) in the event of the issuance of any order or ruling suspending the distribution of securities under the Prospectus supplement. The Company will promptly respond to any and all comments received from the Canadian Securities Regulatory Authorities or the effectiveness of the Registration Statement from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution order suspending or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that preventing the use of the Prospectus may be resumed or suspending the Secondary Registration of any of the Designated Registrable Securities or cease trading the distribution in any applicable province or territory of Canada or in the United States, the Corporation will, as expeditiously as possible after actual knowledge by the Corporation thereof, notify the Holders of such event and is furnished with use its commercially reasonable efforts promptly to obtain the withdrawal of such order or ruling;
(s) a supplemented reasonable time prior to (and again within two Business Days following) the filing of any Registration Statement, any prospectus (including any Prospectus), any Canadian Base Prospectus, any Prospectus Supplement, or amended Prospectus any amendment or supplement to any of the foregoing, provide copies of such documents to the Holders and the underwriters (if any), and make such changes in any of the foregoing documents prior to the filing thereof, or in the case of changes received from counsel to the Holders by filing an amendment or supplement thereto, as contemplated by Section 8(athe Holders, underwriters or their respective counsel reasonably requests, and not file any such document in a form to which any Holder or underwriter (if any) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety have previously been advised and furnished a copy of or to which counsel for the Holders or the underwriters (90if any) days in the aggregate shall reasonably object, and not including in any 12 month period. If amendment or supplement to such documents any information about the Company Holders or any change to the plan of distribution of the Registrable Securities that would limit the method of distribution of the Registrable Securities unless counsel for the Holders has been advised in advance and approved such information or change, and make available Representatives of the Corporation to the extent reasonably requested to discuss such documents (and any proposed revisions thereto);
(t) otherwise comply with all Applicable Securities Laws and make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least twelve months which shall give Purchaser satisfy the provisions of Section 11(a) of the U.S. Securities Act and Rule 158 thereunder and any Suspension Noticeother similar Applicable Securities Laws;
(u) during the Registration Period, the Company shall extend the period of time during which the Company is required Corporation will take all actions necessary to maintain the applicable Registration Statements effective pursuant listing of the Registrable Securities on the Toronto Stock Exchange and the New York Stock Exchange;
(v) cooperate and assist in any filings required to this Agreement be made with the U.S. Financial Industry Regulatory Authority, as applicable, and in the performance of any due diligence investigation by the number of days any underwriter and its counsel in connection therewith;
(w) during the period from Registration Period, the Corporation will promptly prepare and including file French translations of all documents incorporated by reference into the date Base Prospectus; and
(x) during the Registration Period, the Corporation will provide to the Holders, not later than December 15, the Corporation’s timetable for scheduled Blackout Periods for the succeeding year, and will advise the Holders if the timetable for such scheduled Blackout Periods changes during the course of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodyear.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Registration Rights Agreement (Conocophillips), Registration Rights Agreement (Cenovus Energy Inc.)
Procedures. (a) In connection with the registration and sale of Whenever a Key Holder requests that any Registrable Common Stock be registered or sold pursuant to this Agreement, the Company shall use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s the intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and at least three (3) Business Days before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the selling Key Holders and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthe selling Key Holders, the exhibits incorporated by reference, and Purchaser the selling Key Holders (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser the selling Key Holders (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 daysas set forth in Section 2 or 3, in the case of a Demand Registration Statement or an aggregate of eighteen (18) monthsas applicable, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period)hereof, or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Key Holders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Key Holders or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser the selling Key Holders such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser the selling Key Holders and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its commercially reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser the Key Holders and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) promptly notify Purchaser the selling Key Holders and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the selling Key Holders or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Common Stock, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser the selling Key Holders or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser the Key Holders and the underwriter(s) in connection with performing due diligence) and ), (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserthe selling Key Holders and (iv) cause its independent certified public accountants to issue “comfort letters” in form, substance and scope as are customary in underwritten offerings, addressed and delivered to the underwriter, if any, and the Company shall request for such “comfort letters” to also be addressed and delivered to each selling Key Holders;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser the Key Holders under Section 22 or 3, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaserthe Key Holders, any underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser the Key Holders or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserthe selling Key Holders, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its commercially reasonable best efforts to cause all such Registrable Common Stock to be listed or qualified on NASDAQeach securities exchange, or any exchange if any, on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaseror traded;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, and request such letters to be addressed to the selling Key Holders, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;; and
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser the selling Key Holders and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerProspectus;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser the Key Holders furnished to the Company by or on behalf of Purchaser the Key Holders specifically for use therein).
(c) The Company shall make available to Purchaser the selling Key Holders (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference thereinStatement, and (ii) such number of copies of each a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the selling Key Holders or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser the selling Key Holders of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplementamendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, request as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) 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 any registration statement covering Registrable Common Stock, without the prior written consent of the selling Key Holder and any underwriter 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 Key Holders are parties shall be deemed to satisfy the requirement for such consent.
(e) The Company may require Purchaser the Key Holders to furnish to the Company any other information regarding Purchaser the Key Holders and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Registration Rights Agreement (Silicon Graphics Inc), Registration Rights Agreement (Silicon Graphics Inc)
Procedures. (a) In connection with Whenever required under this Article IV to effect the registration and sale Registration of any Registrable Common Stock pursuant to this AgreementSecurities, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(ia) prepare and file with the SEC Commission a Registration Statement with respect to such those Registrable Common Stock Securities and use its reasonable best efforts to cause such that Registration Statement to become effective, and, keep the Registration Statement effective as soon as practicable thereafterand current for not less than ninety (90) days or until the date on which all Registrable Securities included in such Registration Statement shall have been sold or shall have otherwise ceased to be Registrable Securities; provided, that a Shelf Registration shall be kept effective and current for not less than eighteen (18) months or until the date on which all Registrable Securities included in such Registration Statement shall have been sold or shall have otherwise ceased to be Registrable Securities, subject to Section 4.1; provided further that before filing a such Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, the Company will furnish to Purchaser and the underwriter or underwriters, if any, counsel selected by the Investor copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iib) prepare and file with the SEC such Commission amendments and supplements to such that Registration Statement and the Prospectus prospectus or prospectus supplement used in connection therewith with the Registration Statement as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the U.S. Securities Act Law with respect to the disposition of all securities Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iiic) furnish to Purchaser such the Investor and underwriters the number of copies of such Registration Statementa prospectus, each amendment including a preliminary prospectus, required by U.S. Securities Laws, and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such any other documents as Purchaser and any underwriter(s) they may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 owned by the CompanyInvestor;
(ivd) use its reasonable best efforts to register Register and qualify the Securities covered by the Registration Statement under U.S. Securities Laws, as reasonably requested by the Investor or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, underwriters; provided that the Company will shall not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)business, (2) subject itself to taxation in any such jurisdiction or (3) file a general consent to general service of process in any such jurisdiction)jurisdictions; and provided further that in the event any jurisdiction in which the Securities shall be qualified imposes a non-waivable requirement that expenses incurred in connection with the qualification of the Securities be borne by the selling Shareholders, those expenses shall be payable by such selling Shareholders on a pro rata basis;
(ve) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement in customary form (including indemnification provisions and procedures customary in underwritten offerings) and take all such other actions reasonably requested by the underwriters to expedite or facilitate the underwritten disposition of such Registrable Securities (including making its officers and management team available for investor road shows, sales events, marketing activities and other meetings) and in connection therewith in any underwritten offering, (i) make such representations and warranties to the underwriters and the Investor with respect to the business of the Company and its Subsidiaries, and the Registration Statement, prospectus and documents incorporated or deemed to be incorporated by reference therein, in each case, in customary form and confirm the same if and when requested, (ii) furnish opinions of counsel to the Company, addressed to the underwriters covering the matters customarily covered in such opinions requested in underwritten offerings, (iii) use its reasonable best efforts to obtain “comfort” letters from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any business acquired by the Company for which financial statements or financial data are included in the Registration Statement) who have certified the financial statements included in the Registration Statement, addressed to the underwriters, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters and (iv) deliver such documents and certificates as may be reasonably requested by the Investor whose Registrable Securities being sold in connection therewith, its counsel and the underwriters to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company;
(f) promptly notify the Investor: (i) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective; (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus used in connection with the Registration Statement or any additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of any Registrable Securities for sale in any jurisdiction or the initiation or overt threat of any proceeding for such purpose;
(g) notify Purchaser and any underwriter(s)the Investor, at any time when a Prospectus prospectus relating thereto is required to be delivered under the U.S. Securities ActLaws, of the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in the request light of Purchaser or any underwriter(s), the Company shall circumstances then existing and promptly prepare a supplement or post-effective amendment to such Prospectus Registration Statement or a supplement to the related prospectus and file any other required document, and prepare and furnish to the Investor and underwriters a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary, so that, as thereafter supplemented and/or amendeddelivered to the Investor and any underwriters, such Prospectus shall the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(vih) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of any Registration Statement at the earliest practicable time;
(i) if any such Registration Statement refers to the Investor by name or otherwise as the holder of any Securities, and if the Investor is advised by counsel that it is or may be deemed to be a control person in relation to, or an Affiliate of, the Company, then the Investor shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to the Investor, to the effect that the holding by the Investor is not to be construed as a recommendation by the Investor of the investment quality of the Company’s Securities covered thereby and that such holding does not imply that the Investor will assist in meeting any future financial requirements of the Company, or (ii) in the case event that such reference to the Investor by name or otherwise is not, based on the advice of an underwritten offeringthe counsels to the Company, the Investor and if applicable, the underwriters, required by the Securities Act or any similar federal statute then in force, the deletion of the reference to the Investor;
(ij) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser if requested by the Investor or the underwriter(s) underwriters, include in a prospectus supplement or amendment to the Registration Statement such information as reasonably request required to be included therein in order to expedite or facilitate permit the disposition intended method of distribution of the Registrable Securities and make all required filings of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and prospectus supplement or such amendment as soon as practicable after the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions Company’s receipt of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchasersuch request;
(viik) in connection with each Demand Registration provide a transfer agent and registrar for all Registrable Securities Registered pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation the Registration Statement and, where applicable, a number assigned by the Committee on Uniform Securities Identification Procedures for all those Registrable Securities, in all other cases, cause members of senior management each case not later than the effective date of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers)Registration;
(viiil) subject to the execution of confidentiality agreements reasonably satisfactory in form and substance to the Company, pursuant to the reasonable request of the Investor or underwriters, make available for inspection by Purchaserthe Investor, any underwriter underwriters participating in any disposition pursuant to a Registration Statement, Statement and any attorney, accountant attorneys or accountants or other agent agents retained by Purchaser any such underwriters or underwriterselected by the Investor, all pertinent financial and other records, pertinent corporate documents documents, and properties of the Company, and cause the Company’s officers, directors, employees employees, and independent accountants to supply all information reasonably requested by Purchaserthe Investor, any underwriterunderwriters, any attorneyattorneys, any accountant accountants, or any agent agents, in each case, as necessary or advisable to verify the accuracy of the information in such Registration Statement and to conduct appropriate due diligence in connection with such Registration Statementtherewith;
(ixm) use its reasonable best efforts to cause all the transfer agent to remove restrictive legends on certificates representing the securities covered by such Registration Statement, as appropriate and settle any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Investor or underwriters;
(n) cooperate with the Investor and the underwriters to facilitate the timely delivery of Registrable Securities to be sold and to enable such Registrable Common Stock Securities to be issued in such denominations and registered in such names as the Investor may reasonably request at least two (2) Business Days prior to the closing of any sale of Registrable Securities; and
(o) use its reasonable best efforts to cause the Registrable Securities to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdictionNYSE.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Investor Rights Agreement (Alibaba Group Holding LTD), Investor Rights Agreement (Ali YK Investment Holding LTD)
Procedures. (a) In connection with Upon receipt of a Request or a notice from the registration and sale of Registrable Common Stock Investor pursuant to this AgreementArticle 2, the Company shall use its commercially reasonable best efforts to effect the registration and Demand Registration or Piggyback Registration, as the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofcase may be, and pursuant thereto in particular, the Company shall as expeditiously as reasonably practicableshall:
(ia) prepare and file a preliminary prospectus or registration statement, as applicable, under and in compliance with the SEC a Securities Laws in each jurisdiction in which the Registration Statement is to be effected and such other related documents as may be necessary to be filed in connection with such preliminary prospectus or registration statement and shall, (i) with respect to such Registrable Common Stock a Registration in Canada, prepare and file a prospectus and use its commercially reasonable best efforts to cause a receipt to be issued for such prospectus as soon as possible and shall take all other steps and proceedings that may be necessary in order to qualify the securities being sold pursuant to such Registration, and/or (ii) with respect to a Registration in the United States, use its commercially reasonable efforts to cause such Registration Statement registration statement to be declared or become effective as soon as practicable thereafter; in order to register the offer and sale of the securities being offered pursuant such Registration (provided that, before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed referred to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthis Section 3.1, the exhibits incorporated by reference, Company shall furnish to the counsel to the Investor copies thereof and Purchaser (and the underwriter(sotherwise comply with Section 3.2), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement preliminary prospectus and the Prospectus used in connection therewith prospectus or registration statement, as applicable, as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the applicable Securities Act Laws with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case distribution of the Shelf Registration StatementRegistrable Securities, prepare and to take such steps as are necessary to maintain the qualification of such prospectus supplements containing or the effectiveness of such disclosures as may registration statement until the time at which the distribution of the Registrable Securities sought to be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownsold is completed;
(iiic) furnish cause to Purchaser be furnished to the Investor, the underwriter or underwriters of any offering (i) such number of copies of such Registration Statementpreliminary prospectus, each amendment prospectus, registration statement and supplement thereto, each Prospectus any amendments and supplements thereto (including each preliminary Prospectus and Prospectus supplementany documents incorporated therein by reference) and such other customary documents, opinions, certificates, comfort letters and closing documents as Purchaser and any underwriter(s) the underwriters or the Investor may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Companyrequest;
(ivd) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser immediately notify the Investor and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, underwriters of the occurrence of any event as a result of which any Prospectus contains the preliminary prospectus, prospectus or registration statement, as then in effect, might include an untrue statement of a material fact or omits might omit any material fact that is required to be stated or that is necessary to make the statements any statement therein not misleading, and, at misleading in light of the request of Purchaser circumstances in which it was made (other than facts or any underwriter(sstatements provided by the Investor), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vie) comply with Securities Laws and the rules, regulations and policies of the TSX, the NYSE Amex and of any other stock exchange or over the counter market on which the Common Shares are then listed and/or traded;
(f) in the case respect of an underwritten offeringany Demand Registration, (i) enter into an underwriting agreement or similar such customary agreements (including agreement with the underwriters for the offering containing such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements in customary form), (ii) with respect to secondary distributions and take all such other actions as Purchaser are permitted by Law as the Investor or the underwriter(s) underwriters reasonably request in order to expedite or facilitate the disposition of such the Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued Securities by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities ActInvestor; and
(xiiig) promptly notify Purchaser and take all such other actions permitted by Law that the underwriter Investor or the underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to expedite or facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective Securities by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewInvestor.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Investor Rights Agreement (Alderon Iron Ore Corp.), Investor Rights Agreement (Hebei Iron & Steel Group Co., Ltd.)
Procedures. (a) In connection with the case of each registration and sale of Registrable Common Stock or qualification pursuant to this Agreement, the Company shall use its reasonable best efforts will keep all Holders advised in writing as to effect the initiation of proceedings for such registration and qualification and as to the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition completion thereof, and pursuant thereto will advise any such Holder, upon request, of the Company shall as expeditiously as reasonably practicable:progress of such proceedings.
(ib) prepare The Company will use its best efforts, at the Company's sole expense, to keep each registration and file qualification under this Agreement effective (and in compliance with the SEC a Registration Statement with respect to Securities Act) by such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective action as soon as practicable thereafter; and before filing a Registration Statement may be necessary or Prospectus or any amendments or supplements thereto (including any prospectus supplement appropriate for a shelf takedown)period of one hundred twenty (120) days after the effective date of such registration statement, furnish to Purchaser and the underwriter or underwritersincluding, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserwithout limitation, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such of post-effective amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be any registration statement or prospectus necessary to keep the registration statement current and the further qualification under any applicable Blue Sky or other state securities laws to permit such Registration Statement effective for a period of not less than 90 dayssale or distribution, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period all as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Holder or any underwriter(s) in connection with each shelf takedown;Holders.
(iiic) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the The Company shall immediately notify each Holder on whose behalf Registrable Securities have no such obligation been registered pursuant to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Company;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s)Agreement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus prospectus included (or deemed included) in such Registration Statement contains registration statement (including any preliminary prospectus), as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing.
(a “Suspension Notice”), Purchaser d) The Company will forthwith discontinue disposition of furnish to each Holder on whose behalf Registrable Common Stock Securities have been registered pursuant to this Agreement a signed counterpart, addressed to such Registration Statement Holder, of (i) an opinion of counsel for the Company, dated the effective date of such registration statement, and (ii) a reasonable length so-called "cold comfort" letter signed by the independent public accountants certifying the Company's financial statements included in such registration statement, and such opinion of time not counsel and accountants' letter shall cover substantially the same matters with respect to exceed 10 days such registration statement (45 days and the prospectus included therein) and, in the case of an event described such accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in Section 3(d)opinions of issuer's counsel
(e) until Purchaser is advised Without limiting any other provision hereof, in writing by the Company that the use of the Prospectus may be resumed and is furnished connection with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales any registration of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension NoticeSecurities under this Agreement, the Company shall extend will comply with the Securities Act, the Exchange Act, all applicable rules and regulations of the Commission, and all other applicable laws and will make generally available to its securities holders, as soon as reasonably practicable, an earnings statement covering a period of time during which at least twelve (12) months, beginning with the Company is required to maintain first month of the applicable Registration Statements first fiscal quarter after the effective pursuant to this Agreement by the number of days during the period from and including the date of such registration statement, which earnings statement shall satisfy the giving provisions of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use Section 11(a) of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodSecurities Act.
(f) In connection with any registration of Registrable Securities under this Agreement, the Company will, if requested by underwriters for any Registrable Securities included in such registration, enter into an underwriting agreement with such underwriters for such offering, such agreement to contain such representations and warranties by the Company and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, including, without limitation, provisions relating to indemnification. The Company Holders on whose behalf Registrable Securities are to be distributed by such underwriters shall not permit be parties to any officersuch underwriting agreement, directorand the representations and warranties by, underwriterand the other agreements on the part of, broker or any other person acting on behalf of the Company to use and for the benefit of such underwriters shall also be made to and for the benefit of such Holders. Such underwriting agreement shall also comply with Section 9 hereof.
(g) If the Company at any free writing prospectus (as defined in Rule 405 time proposes to register any of its securities under the Securities Act) , other than pursuant to a request made under Section 2 hereof, whether or not for sale for its own account, and such securities are to be distributed by or through one or more underwriters, then the Company will use its best efforts, if requested by any Holder requesting registration of Registrable Securities in connection therewith pursuant to Section 3 or 4 hereof, to arrange for such underwriters to include such Registrable Securities among the securities to be distributed by or through such underwriters.
(h) In connection with any the preparation and filing of each registration statement covering registering Registrable Common StockSecurities, without the prior written consent Company will give any Holders on whose behalf such Registrable Securities are to be so registered, any underwriters participating in any such disposition of Purchaser Registrable Securities and any underwriter.their respective counsel and accountants, the opportunity to participate in the preparation of such registration statement, each prospectus included therein or filed with the Commission, and each amendment thereof or supplement thereto, and will give each of them such access to its books and records and such opportunities to discuss the business of the Company with its officers, its counsel and the independent public accountants who have certified its financial statements, as shall be necessary, in the opinion of such Holders or such underwriters or their respective counsel, in order to conduct a reasonable and diligent investigation within the meaning of the Securities Act. Without limiting the
Appears in 2 contracts
Sources: Registration Rights Agreement (Swiss Reinsurance America Corp), Registration Rights Agreement (Reliance Financial Services Corp)
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall is required to use its reasonable best efforts to effect or cause the registration and under the sale Securities Act as provided in this Agreement of such any Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofSecurities, and pursuant thereto the Company shall shall, as expeditiously as reasonably practicablepossible:
(i1) prepare and file with notify each Holder of Registrable Securities covered by such registration statement when such registration statement or any amendment thereto has been filed or becomes effective;
(2) notify each Holder of Registrable Securities covered by such registration statement of any notice from the SEC that there will be a Registration Statement review of such registration statement and promptly provide such Holders with respect a copy of any SEC comments received by the Company in connection therewith;
(3) furnish, without charge, to such Registrable Common Stock each Holder and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriterseach underwriter, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities Registrable Securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser registration statement such number of copies of such Registration Statementregistration statement, each amendment and supplement thereto, each Prospectus and the prospectus included in such registration statement (including each preliminary Prospectus and Prospectus supplement) prospectus), in conformity with the requirements of the Securities Act, and such other documents as Purchaser and any underwriter(s) such Holder may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no Securities owned by such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the CompanyHolder;
(iv4) use its reasonable best efforts to register or qualify the Registrable Securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) underwriter of Registrable Securities covered by such registration statement reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser each Holder and any underwriter(s) each underwriter to consummate the disposition in such jurisdictions of the Registrable Common Stock (Securities owned by such Holder; provided, however, that the Company will shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph paragraph (iv4), (2ii) subject itself to taxation in any such jurisdiction or (3iii) consent to general service of process in any such jurisdiction)jurisdiction in which it is not already subject to service of process;
(v5) use its reasonable best efforts to cause the Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the Holder or Holders thereof to consummate the disposition of such Registrable Securities;
(6) immediately notify Purchaser each of the joint lead bookrunning underwriters, if any, and any underwriter(s)each Holder of Registrable Securities covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, Act of the occurrence happening of any event which comes to the Company’s attention if as a result of which any Prospectus such event the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), and the Company shall promptly prepare and file with the SEC such amendment or supplement to such registration statement or prospectus and furnish to such Holder a supplement or amendment to such Prospectus prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i7) enter into such customary agreements (including an underwriting agreements agreement in customary form), (ii) and take all such other actions as Purchaser or the underwriter(s) underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (includingSecurities, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are including customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserindemnification;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) 8) make available for inspection by Purchaser, any underwriter participating in any disposition underwritten offering of Registrable Securities pursuant to a Registration StatementSection 1.02, and any attorney, accountant or other agent retained by Purchaser or underwriterany such underwriter (collectively, all pertinent the “Inspectors”), those financial and other records, pertinent corporate organizational documents and properties of the CompanyCompany and its controlled entities (collectively, “Records”), and cause the Company’s and its controlled entities’ officers, directors, directors and employees and independent accountants to supply all that information and respond to those inquiries reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent such Inspector in connection with such Registration Statementregistration statement, in each case under this paragraph (8) only to the extent reasonably necessary, as mutually determined by the Company and the applicable underwriters, to enable such underwriters to conduct their due diligence investigation;
(ix9) use its reasonable best efforts to cause all such Registrable Common Stock furnish to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of underwriter participating in any underwritten offering, immediately prior offering pursuant to effectiveness Section 1.02 a signed counterpart of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters a “cold comfort” letter from the Company’s independent registered public accountants addressed to Purchaser who have audited the Company’s financial statements included or incorporated by reference in such registration statement (and each underwriterprospectus included therein), if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are matter of the type customarily covered by “cold comfort” letters of the independent registered public accountants delivered in connection with primary underwritten public offeringsofferings of securities as the underwriters reasonably request (and dated the dates such comfort letters are customarily dated);
(xii10) make generally available use its reasonable best efforts to Purchaser furnish to each underwriter participating in any underwritten offering pursuant to Section 1.02 a signed counterpart of an opinion and its Affiliates a consolidated earnings statement negative assurance letter of counsel from the Company’s outside counsel in customary form and covering such matters of the type customarily covered in opinions and negative assurance letters of counsel delivered in connection with underwritten public offerings of securities;
(which need not be audited11) for cooperate with each seller of Registrable Securities and each underwriter or agent participating in the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end disposition of such period, which earnings statement shall satisfy Registrable Securities and their respective counsel in connection with any filings with the requirements of an earning statement under Section 11(a) of the Securities ActNASD; and
(xiii12) promptly notify Purchaser otherwise use its reasonable best efforts to comply with all applicable rules and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) regulations of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdictionSEC.
(b) The It shall be a condition precedent to the obligation of the Company represents and warrants that no Registration Statement (including to take any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement action pursuant to this Agreement in respect of a material fact or omit to state a material fact required the Registrable Securities which are to be stated therein, registered or necessary to make offered for the statements therein not misleading (except benefit of any Holder thereof that the Company makes no representation or warranty with respect to information relating to Purchaser furnished such Holder shall furnish to the Company such information regarding the Registrable Securities held by or on behalf such Holder and the intended method of Purchaser specifically for use therein)disposition thereof as the Company shall reasonably request and as shall be reasonably required in connection with the action taken by the Company.
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) kind described in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”Section 1.04(a)(6), Purchaser will forthwith such Holder shall discontinue disposition of Registrable Common Stock Securities pursuant to the registration statement covering such Registration Statement for a reasonable length Registrable Securities until such Holder’s receipt of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus prospectus contemplated by Section 8(a) (a “Blackout Period”1.04(a)(6). In any event, and, if so directed by the Company, such Holder shall deliver to the Company shall not be entitled to deliver more all copies (including any and all drafts), other than a total of three (3) Suspension Notices or notices of any Delay Period permanent file copies, then in any twelve (12)-month period.
(f) The Company shall not permit any officersuch Holder’s possession, director, underwriter, broker or any other person acting on behalf of the Company to use any free writing prospectus (as defined in Rule 405 under covering such Registrable Securities, current at the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent time of Purchaser and any underwriterreceipt of such notice.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Verasun Energy Corp), Registration Rights Agreement (Verasun Energy Corp)
Procedures. So long as the Registration Statement is effective, Investor or any transferee whose resales are covered by the Registration Statement agrees to provide a representative of the Company (awhich will be designated from time to time) In connection with reasonable prior notice of its intention to conduct the registration and sale or other transfer or disposition of Registrable Common Stock any Securities pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and agrees not to proceed with such sale, transfer or disposition pursuant to the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for until it has received a period response from the representative notifying it that none of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen following is then occurring: (18A) months, in the case of a Shelf Registration Statement (plus, in each case, the duration happening of any Delay Period and any Blackout Period)event, or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which the Registration Statement, any Prospectus prospectus or prospectus supplement constituting a part thereof, or any document incorporated by reference in any of the foregoing contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at in the request light of Purchaser or any underwriter(s), the circumstances under which they are made; (B) the Company shall prepare a supplement or amendment is in possession of material information that it deems advisable not to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) disclose in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
; (ixC) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by that the Company are then listed or, if no such similar has determined to proceed with a public offering of its equity securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing judgment of the sale of Registrable Common Stock pursuant theretomanaging underwriter thereof or the Company (if such offering is not underwritten), letters from sales under the Company’s independent registered public accountants addressed to Purchaser and each underwriterRegistration Statement would have a material adverse effect on such offering; or (D) the Company is engaged in any program for the purchase of Common Shares, if any, stating that unless such accountants are independent public accountants within the meaning of the Securities Act repurchase program and the requested sale may proceed concurrently pursuant to an exemption under the SEC's Regulation M or any other applicable rules exemption (it being understood that, to the extent consistent with any such program, the Company will use commercially reasonable efforts to make an exemption available to the Investor or any such transferee or to otherwise open up a sufficient window period under Regulation M to enable the Investor or any such transferee to obtain the liquidity it desires hereunder). The Company agrees to respond to any inquiry pursuant to the preceding sentence within one hour after the receipt of notice and regulations adopted by the SEC thereunderthat any period in which sales, transfers or dispositions must be discontinued as a result of a given occurrence of a circumstance referred to in such sentence shall not exceed 60 days, and otherwise shall not exceed 105 days in customary form and covering such financial and accounting matters as are customarily covered by letters the aggregate over any 12-month period. It will be a condition for any transferee to be permitted to sell, transfer or dispose of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment pursuant to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty transferee agrees to comply with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein)this Section 1.
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Investment Agreement (Dime Bancorp Inc), Investment Agreement (Warburg Pincus Equity Partners Lp)
Procedures. Upon receipt of a request from the Holders pursuant to section 2.1, the Corporation will, subject to section 2.1, effect the Secondary Registration as requested. In particular, the Corporation will, in each case as applicable:
(a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:possible, prepare and file in the English language and, if required, French language, a Prospectus Supplement under and in compliance with the Securities Laws of each Canadian jurisdiction in which the Secondary Registration is to be effected and such other related documents as may be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit an underwritten public offering of the Designated Registrable Securities by the Holders in the applicable Canadian jurisdictions;
(ib) as expeditiously as reasonably possible, prepare and file with the SEC a Registration Statement with respect Prospectus Supplement, covering the distribution of the Designated Registrable Securities (subject to the terms of Section 2.1) and such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective other related documents as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed may be reasonably necessary to be filed, including documents incorporated filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit an underwritten public offering of the Designated Registrable Securities by reference the Holders in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoUnited States;
(iic) use commercially reasonable efforts to prepare and file with the applicable Commissions in the Canadian jurisdictions in which the Secondary Registration is to be effected and with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith Supplement, as may be reasonably necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the applicable Securities Act Laws with respect to the disposition Registration of all securities covered by Designated Registrable Securities, and take such steps as are reasonably necessary to maintain the effectiveness of the Prospectus and the Registration Statement during the Registration Period;
(d) use commercially reasonable efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Holders of the Designated Registrable Securities covered by the Prospectus Supplement under such period in accordance with other securities or “blue sky” laws of such jurisdictions of the intended methods of disposition United States as designated by Purchaser thereof set forth in such Registration Statement andthe Holders, acting reasonably, in the case of the Shelf Registration Statementrequest for Demand Registration, (ii) prepare and file in those jurisdictions, such prospectus amendments (including post-effective amendments) and supplements containing to such disclosures registrations and qualifications as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
necessary to maintain the effectiveness until the time at which the distribution of the Designated Registrable Securities is completed (the “Distribution Period”), (iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and take such other documents actions as Purchaser may be necessary to maintain such registrations and any underwriter(squalifications in effect at all times during the Distribution Period, and (iv) may take all other actions reasonably request necessary or advisable to qualify the Designated Registrable Securities for sale in order to facilitate the disposition of the Registrable Common Stock, such jurisdictions; provided, however, that the Company Corporation 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required in connection therewith or as a condition thereto to (1A) qualify generally to do business as a foreign corporation or dealer in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (ivsubsection 3.1(d), (2B) subject itself to any taxation in any such jurisdiction jurisdiction, or (3C) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company . The Corporation shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) Holders of the receipt by the Company Corporation of any notification with respect to the suspension of the registration or qualification of any of the Designated Registrable Common Stock Securities for sale under the applicable securities or “blue sky sky” laws of any jurisdiction.jurisdiction of the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose;
(be) The Company represents furnish to the Holders and warrants that no any underwriter or underwriters of any such distribution, upon their request, such number of copies of the Prospectus, the Registration Statement and any amendment and supplement thereto (including any amendments documents incorporated therein by reference) and such other relevant documents as the Holders may reasonably request in order to facilitate the distribution of the Designated Registrable Securities;
(f) furnish to the Holders and any underwriter or supplements thereto underwriters of any such distribution and Prospectuses contained thereinsuch other persons as the Holders may reasonably specify:
(i) shall contain any an opinion of counsel to the Corporation (including a statement that in the opinion of such counsel the Prospectus and the Registration Statement do not include an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading misleading) addressed to the Holders and the underwriter or underwriters of such distribution and dated the closing date of the distribution, in form and substance as is customarily given by company counsel to the underwriters in an underwritten public offering;
(except that ii) a non-statutory “cold comfort” letter addressed to the Company makes no Holders (subject to the auditors’ receipt of required representation letters from the Holders) and the underwriter or warranty with respect underwriters dated the date of the prospectus and the closing date of the distribution signed by the auditors of the Corporation, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing underwriter reasonably requests;
(iii) if a Prospectus Supplement is filed in Quebec, opinions of Quebec counsel to information the Corporation and the auditors of the Corporation addressed to the Holders and the underwriter or underwriters of such distribution relating to Purchaser furnished to the Company by or on behalf translation of Purchaser specifically for use therein).the Prospectus and compliance with French language laws, such opinions being dated the dates of the preliminary prospectus supplement, the final prospectus supplement and closing; and
(civ) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributedsuch corporate certificates as are customarily furnished in securities offerings, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange)and, in each case relating to case, covering substantially the same matters as are customarily covered in such Registration Statement or to any of documents in the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto relevant jurisdictions and such other documents matters as Purchaser or any underwriter the Holders may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective request;
(g) as expeditiously as possible following actual knowledge by the SEC as soon as practicable and shall file an acceleration requestCorporation thereof, if necessary, as soon as practicable following notify the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company Holders of the happening of any event during the Distribution Period as a result of which the Prospectus included or the Registration Statement, as then in effect, would include a misrepresentation;
(h) otherwise use its commercially reasonable efforts to comply with all applicable published policies, rules and regulations of the applicable Commissions and any stock exchange and over-the-counter market on which the Common Shares are then listed or deemed includedquoted;
(i) provide a transfer agent and registrar for such Common Shares no later than the closing date of the offering;
(j) enter into an underwriting agreement with the underwriter or underwriters for such distribution, such agreement to contain such representations and warranties by the Corporation and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions and indemnification agreements substantially consistent with section 4.2 and such other documents on such terms and conditions as are customary in secondary offerings and take all such other actions as permitted by law as the Holders or the underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the distribution of the Designated Registrable Securities;
(k) in such the event of the issuance of any order or ruling suspending the effectiveness of a prospectus receipt or the Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that order suspending or preventing the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated the Registration Statement or suspending the Registration of any of the Designated Registrable Securities by Section 8(a) hereof; provided, however, that such postponement prospectus or registration statement or cease trading the distribution in any applicable province or territory of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days Canada or in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension NoticeUnited States, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement Corporation will, as expeditiously as possible after actual knowledge by the number Corporation thereof, notify the Holders of days such event and use its commercially reasonable efforts promptly to obtain the withdrawal of such order or ruling; and
(l) during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Registration Period”). In any event, the Company shall not be entitled to deliver more than a total Corporation will promptly prepare and file French translations of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodall documents incorporated by reference into the Prospectus.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Registration Rights Agreement (Pershing Square Capital Management, L.P.), Registration Rights Agreement (Canadian Pacific Railway LTD/Cn)
Procedures. (a) In connection with Upon receipt of a Request or a notice from the registration and sale of Registrable Common Stock Purchaser pursuant to this AgreementArticle 5, the Company shall use its reasonable best efforts to effect the Demand Registration or Incidental Registration, as the case may be. In particular, the Company shall:
(a) in the case of a Demand Registration, subject to Article 4, prepare and file (in any event within 45 days after the Request has been delivered to the Company) in the English language and, if required, French language, a preliminary prospectus under and in compliance with the Canadian Securities Acts in each jurisdiction in which the Registration is to be effected (and, if the Company is eligible to effect the Registration in the United States under a registration statement on Form F-10 and the sale Purchaser so requests, a registration statement on Form F-10) and such other related documents as may be necessary to be filed in connection with any such preliminary prospectus and shall, as soon as possible after any comments of the Canadian Securities Commissions have been satisfied with respect thereto, prepare and file under and in compliance with the Canadian Securities Acts a prospectus in the English language and, if required, French language and use its best efforts to cause a receipt to be issued for such prospectus as soon as possible and shall take all other steps and proceedings that may be necessary in order to qualify the Designated Registrable Common Stock Securities under the applicable Canadian Securities Acts for distribution by registrants who comply with the relevant provisions of the Canadian Securities Acts and, if the Registration is to be effected in accordance with Purchaser’s intended methods the United States by the filing of disposition thereofa registration statement on Form F-10, and pursuant thereto under the 1933 Act (provided that, before filing all such documents referred to in this Section 8.1(a), the Company shall as expeditiously as reasonably practicable:furnish to the counsel to the Purchaser copies thereof and otherwise comply with Section 9.1);
(ib) prepare and file with the SEC a applicable Canadian Securities Commissions in the jurisdictions in which the Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed is to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC effected all such amendments and supplements to such Registration Statement preliminary prospectus and the Prospectus used in connection therewith prospectus (and registration statement, if applicable) as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the applicable Canadian Securities Act Acts with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case distribution of the Shelf Registration StatementDesignated Registrable Securities, prepare and to take such steps as are necessary to maintain the qualification of such prospectus supplements containing (and registration statement, if applicable) until the earlier of (i) the time at which the distribution of the Designated Registrable Securities is completed and (ii) 42 days after the receipt for such disclosures as may be reasonably requested prospectus has been issued by each of the applicable Canadian Securities Commissions (provided that, before filing such documents, the Company shall furnish to the counsel to the Purchaser or any underwriter(s) in connection copies thereof and otherwise comply with each shelf takedownSection 9.1);
(iiic) furnish to the Purchaser such number of copies of such Registration Statementpreliminary prospectus, each prospectus and any amendment and supplement thereto, each Prospectus thereto (including each preliminary Prospectus and Prospectus supplementany documents incorporated therein by reference) and such other relevant documents as the Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Designated Registrable Common Stock, 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 owned by the Company;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(viid) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior furnished to the pricing of any underwritten offeringPurchaser, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) underwriters of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto offering and such other documents persons as the Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.specify:
Appears in 2 contracts
Sources: Investor Agreement (Patheon Inc), Purchase Agreement (Patheon Inc)
Procedures. (a) In connection with Whenever the registration and sale holders of Registrable Common Stock Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the intended methods method of disposition thereof, ; and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(ia) prepare and file with the SEC Securities and Exchange Commission (the "Commission") a Registration Statement with respect to registration statement on the appropriate form under the Securities Act, which form shall be available for the sale of such Registrable Common Stock Securities in accordance with the intended method or methods of distribution thereof, and use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereafter; and (provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, the Company shall furnish to Purchaser and the underwriter or underwriters, if any, counsel selected by the holders of a majority of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed, including which documents incorporated by reference in shall be subject to the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make of such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(scounsel), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iib) notify each holder of Registrable Securities of the effectiveness of each registration statement filed hereunder and prepare and file with the SEC Commission, such amendments, post-effective amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary or appropriate to keep such Registration Statement registration statement effective for a the period required for sale of the Registrable Securities, (provided that in no event shall the Company be obligated to keep such registration statement effective (i) if the Company is eligible to use the Form S-3, at such time as there are no longer any Registrable Securities outstanding, and (ii) if the Company is not less than 90 dayseligible to register on Form S-3, in until such time as the case Purchasers are eligible to sell all of a Demand Registration Statement or an aggregate of eighteen the Registrable Securities pursuant to Rule 144 (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Periodk)), or cause such shorter period prospectus as is necessary so supplemented to complete be filed as required under the distribution of the securities covered by such Registration Statement Securities Act, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during such period in accordance with the intended methods of disposition by Purchaser the sellers thereof set forth in such Registration Statement and, in registration statement or supplement to the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably prospectus;
(c) if requested by Purchaser the managing underwriter or any underwriter(s) underwriters or a holder of Registrable Securities being sold in connection with each shelf takedownan underwritten offering, immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority in interest of the Registrable Securities being sold reasonably agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the principal amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold in such offering, and make all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post- effective amendment;
(iiid) furnish to Purchaser each seller of Registrable Securities such number of copies of such Registration Statementregistration statement, each amendment and supplement thereto, each Prospectus the prospectus included in such registration statement (including each preliminary Prospectus and Prospectus supplementprospectus) and such other documents as Purchaser and any underwriter(s) such seller may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no Securities owned by such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Companyseller;
(ive) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic where such registration or foreign) qualification is required as Purchaser and any underwriter(s) seller reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock Securities owned by such seller (provided, provided that the Company will shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2ii) subject itself to taxation in any such jurisdiction or (3iii) consent to general service of process in any such jurisdiction);
(vf) notify Purchaser and any underwriter(s)each seller of such Registrable Securities, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus the prospectus included in such registration statement as then in effect, contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, at the request of Purchaser or any underwriter(s)such seller, the Company shall promptly prepare a supplement or amendment to such Prospectus prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus prospectus shall not contain an untrue statement of a material fact required to be stated therein or omit to state any material fact necessary to make the statements therein not misleading;
(vig) cause all such Registrable Securities to be listed on the securities exchange on which similar securities issued by the Company are then listed or traded, and, if not so listed or traded, to be listed on the NASDAQ Stock Market;
(h) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; enable such Registrable Securities to be in such denominations and registered in such names as the case selling holders or the managing underwriters, if any, may request at least ten Business Days prior to any sale of an underwritten offering, Registrable Securities; and provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(i) enter into such customary agreements (including including, if there is an underwriter, underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (form including, without limitation, causing senior management and other Company personnel the requirement to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its obtain an opinion of counsel to issue opinions of counsel in form, substance the Company and scope as are customary in primary underwritten offerings, addressed and delivered a "comfort letter" from the independent public accountants to the underwriter(s) Company in the usual and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasersform for such an underwritten offering);
(viiij) make available for inspection by Purchaserany seller of Registrable Securities, any underwriter participating in any disposition pursuant to a Registration Statement, such registration statement and any attorney, accountant or other agent retained by Purchaser any such seller or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the CompanyCompany that are customary, and cause the Company’s 's officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserany such seller, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statementregistration statement;
(ixk) use its reasonable best efforts cooperate, and cause the Company's officers, directors, employees and independent accountants to cause all such Registrable Common Stock to be listed on NASDAQcooperate, or any exchange on which securities of with the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale selling holders of Registrable Common Stock pursuant thereto), letters from Securities and the Company’s independent registered public accountants addressed to Purchaser and each underwritermanaging underwriters, if any, stating that such accountants are independent public accountants within in the meaning sale of the Registrable Securities Act and the take any actions necessary to promote, facilitate or effectuate such sale;
(l) otherwise use its best efforts to comply with all applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) Commission and make generally available to Purchaser and its Affiliates a consolidated earnings security holders, as soon as reasonably practicable, an earning statement (which need not be audited) for covering the 12 months period of at least twelve months, beginning with the first fiscal quarter beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such periodregistration statement, which earnings earning statement shall satisfy the requirements provisions of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2m) of any written request by in the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) event of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the Registration Statementuse of any related prospectus or suspending the qualification of any common stock included in such registration statement for sale in any jurisdiction, the Company shall use its best efforts promptly to obtain the withdrawal of such order; and
(4n) of the receipt by the Company of any notification with respect otherwise use its best effects to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or take all other steps necessary to make effect the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition registration of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewSecurities.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Registration Rights and Right of First Offer Agreement (Halifax Corp), Registration Rights and Right of First Offer Agreement (Halifax Corp)
Procedures. (a) In connection with the registration For purposes of allocating production (and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement accounts receivable with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser Section 2.3 and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offeringSection 2.4, (i) enter liquid Hydrocarbons shall be deemed to be “from or attributable to” the Properties when they pass through the pipeline flange connecting into the tank batteries related to each Well or if there are not storage facilities, when they pass through the LACT meter or similar meter at the entry point into the pipelines through which they are transported from such customary agreements (including underwriting agreements in customary form)Well, and (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company gaseous Hydrocarbons shall be deemed to be available to participate in, and to cooperate with “from or attributable to” the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant Properties when they pass through the delivery point sales meters or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, meters at the time point of closing entry into the pipelines through which they are transported. Seller shall use reasonable interpolative procedures to arrive at an allocation of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants production when exact meter readings or gauging or strapping data are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdictionavailable.
(b) The Company represents Surface use or damage fees, insurance premiums (and warrants refunds thereof), and other Property Costs that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) are paid periodically shall contain any untrue statement be prorated based on the number of a material fact or omit to state a material fact required to be stated thereindays in the applicable period falling before, or necessary to make on or after, the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein)Effective Date.
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”)After Closing, Purchaser will forthwith discontinue disposition shall handle all joint interest audits and other audits of Registrable Common Stock pursuant to such Registration Statement Property Costs covering periods for a reasonable length of time not to exceed 10 days (45 days which Seller is in the case of an event described whole or in part responsible under Section 3(d)) until Purchaser is advised in writing by the Company 2.4, provided that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in agree to any 12 month period. If the Company shall give Purchaser adjustments to previously assessed costs for which Seller is liable, or any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices compromise of any Delay Period in any twelve (12)-month period.
(f) The Company shall not permit any officer, director, underwriter, broker or any other person acting on behalf of the Company audit claims to use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stockwhich Seller would be entitled, without the prior written consent of Seller, such consent not to be unreasonably withheld, conditioned or delayed. Purchaser shall provide Seller with a copy of all applicable audit reports and written audit agreements received by Purchaser and relating to periods for which Seller is partially responsible.
(d) “Earned” and “incurred,” as used in Section 2.3 and Section 2.4, shall be interpreted in accordance with accounting recognition guidance under GAAP.
(e) Seller and its Affiliates shall not be required to balance in kind with respect to any underwriterimbalances existing as of Closing or turn over physical inventories of Hydrocarbons that have been sold prior to Closing, it being understood and agreed that Purchaser’s rights with respect to any such Assets shall be satisfied exclusively pursuant to Section 2.3, Section 2.4 and Article 11 (with respect to the representation in Section 4.7).
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Earthstone Energy Inc), Purchase and Sale Agreement (Earthstone Energy Inc)
Procedures. Upon receipt of a request from the Holders pursuant to Section 2.2, the Corporation will, subject to Section 2.2, effect the Secondary Registration as requested. In particular, the Corporation will, in each case as applicable: (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its commercially reasonable best efforts to effect the registration prepare and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereoffile, and pursuant thereto the Company shall as expeditiously soon as reasonably practicable:
, in the English language and, if required, French language, a Prospectus Supplement under and in compliance with Applicable Securities Laws of each Canadian jurisdiction in which the Secondary Registration is to be effected and such other related documents as may be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit a registered public offering (iwhether or not underwritten) of the Designated Registrable Securities by the Holders in the applicable Canadian jurisdictions; (b) use commercially reasonable efforts to prepare and file, as soon as reasonably practicable, with the SEC a Prospectus Supplement, covering the distribution of the Designated Registrable Securities and such other related documents as may be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit a registered public offering (whether or not underwritten) of the Designated Registrable Securities by the Holders in the United States; (c) use commercially reasonable efforts to prepare and file with the applicable Canadian Securities Regulatory Authorities in the Canadian jurisdictions in which the Secondary Registration is to be effected and with the SEC a such amendments and supplements to the Prospectus Supplement, as may be reasonably necessary to comply with the provisions of Applicable Securities Laws with respect to the Registration of Designated Registrable Securities, and take such steps as are reasonably necessary to maintain the effectiveness of the Prospectus and the Registration Statement during the term of this Agreement; - 14 - in the Prospectus), in customary form and covering such matters of the type customarily covered by "comfort letters" as the Holder and managing underwriter reasonably requests; (iii) if a Prospectus Supplement is filed in Quebec, opinions of Quebec counsel to the Corporation and the auditors of the Corporation addressed to the Holders and the underwriter or underwriters of such distribution relating to the translation of the Prospectus and compliance with French language laws, such opinions being dated the dates of the preliminary prospectus supplement, the final prospectus supplement and closing; and (iv) such corporate certificates as are reasonably requested in connection with such distribution, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such other matters as the Holders may reasonably request; (l) make available to the underwriter or underwriters in connection with any Secondary Registration reasonable access to the senior management of the Corporation for investor and analyst calls and meetings with respect to such Registrable Common Stock and Secondary Registrations; (m) use its commercially reasonable best efforts to cause such provide any additional cooperation reasonably requested by the underwriters in the offering, marketing or selling of the Registrable Securities; (n) as promptly as practicable after delivery of a notice under Section 3.1(d)(v), use commercially reasonable efforts to prepare a supplement or amendment to the Registration Statement or Prospectus, as applicable, or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to become effective as soon as practicable thereafter; and before filing a purchasers of the Registrable Securities, such Registration Statement or Prospectus or any amendments or supplements thereto will not include a misrepresentation; (o) otherwise use its commercially reasonable efforts to comply with all Applicable Securities Laws; (p) provide a transfer agent and registrar for such securities no later than the closing date of the offering; (q) enter into customary agreements (including any prospectus supplement for a shelf takedownan underwriting agreement with the underwriter or underwriters), furnish such agreements to Purchaser contain such representations and warranties by the Corporation and such other terms and conditions as are customary for such offering (including customary indemnity and contribution provisions), having regard to the form of underwriting agreements entered into by the Corporation in prior public offerings, and take all such other actions as permitted by law as the Holders or the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition distribution of such the Designated Registrable Common Stock Securities; (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(sr) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management event of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing issuance of any underwritten offering, immediately prior to effectiveness order or ruling suspending the distribution of each Registration Statement (and, in securities under the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters Prospectus from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Canadian Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter Regulatory Authorities or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with from the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment order suspending or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that preventing the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement suspending the Secondary Registration of sales any of the Designated Registrable Common Stock by Purchaser shall not exceed ninety (90) days in Securities or cease trading the aggregate distribution in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.applicable
Appears in 2 contracts
Sources: Registration Rights Agreement (Cenovus Energy Inc.), Registration Rights Agreement (Cenovus Energy Inc.)
Procedures. (ai) In connection with If the registration Company desires to exercise the Option and sale of Registrable Common Stock sell Company Ordinary Shares at the Put Shares Purchase Price to Antara pursuant to this AgreementSection 2(a) above, the Company shall use its reasonable best efforts deliver to effect Antara within the registration Put Exercise Period a written, unconditional and irrevocable notice in the form attached hereto at Exhibit B (the “Put Exercise Notice”) exercising the Option and specifying the number of Company Ordinary Shares to be sold at the Put Shares Purchase Price (the “Put Option Shares”), the Put Shares Purchase Price and the sale of aggregate equity value ascribed to such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofCompany Ordinary Shares, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file together with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto Put Shares Subscription Agreement (including any prospectus supplement for a shelf takedowndefined below), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;.
(ii) prepare By delivering the Put Exercise Notice, the Company represents and file with warrants to Antara that: (A) the SEC such amendments Company has the requisite power and supplements authority and has taken all necessary action to such Registration Statement issue and sell the Put Option Shares as contemplated by this Section 2; (B) each of the Company Fundamental Representations and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period representations and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof warranties set forth in such Registration Statement andSection 3.23 of the BCA is true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” or any similar limitation set forth therein) in all material respects (or, solely in the case of the Shelf Registration Statementrepresentations and warranties set forth in Section 3.2(a) of the BCA, prepare such prospectus supplements containing such disclosures true and correct in all respects except for de minimis inaccuracies) as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
of the date on which the Company exercises the Option and Antara executes and delivers the Put Shares Subscription Agreement (iii) furnish to Purchaser such number of copies defined below), as though made on and as of such Registration Statementdate (except to the extent that any such representation and warranty is made in the BCA as of an earlier date (other than the Closing Date), each amendment in which case such representation and supplement thereto, each Prospectus (including each preliminary Prospectus warranty shall be true and Prospectus supplement) and such other documents correct in all material respects as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedearlier date or, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) solely in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements the representations and warranties set forth in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a3.2(a) of the Securities ActBCA, true and correct in all respects except for de minimis inaccuracies as of such earlier date); and
and (xiiiC) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) each of the notification Put Option Shares will be upon issuance and delivery to the Company by the SEC Antara free and clear of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewLiens other than transfer restrictions under applicable securities Laws.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Put Option Agreement (Innoviz Technologies Ltd.), Put Option Agreement (Collective Growth Corp)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreementevent the Company receives a Demand Notice, the Company shall will use its reasonable best efforts promptly to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s intended methods of disposition thereofan underwritten offering to the public, and pursuant thereto the Company shall will use its reasonable efforts as expeditiously as reasonably practicablepracticable to:
(ia) prepare (and afford counsel for the Holder reasonably opportunity to review) and file with the SEC a the Registration Statement with respect to such all Registrable Common Stock and use its reasonable best efforts Securities in accordance with Section 2.2 and, if required, to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a effective, and, subject to Section 2.3, keep such Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and effective until the underwriter or underwriters, if any, copies completion of all such documents proposed to be filed, including documents incorporated by reference the underwritten distribution described in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoStatement;
(iib) prepare (and afford counsel for the Holder reasonably opportunity to review) and, subject to Section 2.3, file with the SEC such amendments and supplements to such Registration Statement and (including the Prospectus used in connection therewith with such Registration Statement) as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the Holder’s underwritten disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof as set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iiic) furnish to Purchaser Holder and the underwriters of the Registrable Securities being registered such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser and any underwriter(s) the Holder or such underwriters may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that Securities being registered or the Company shall have no sale of such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied securities by the Companysuch underwriters;
(ivd) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic or foreign) within the United States as Purchaser and any underwriter(s) the managing underwriter reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) the Holder to consummate the underwritten disposition in such jurisdictions of the Registrable Common Stock (Securities owned by the Holder; provided, however, that the Company will not be required to (1A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction subsection or (3B) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (ie) enter into such customary agreements (including an underwriting agreements agreement in customary form), cause its named executive officers and directors to execute lock-up agreements in customary form with lock-ups not to exceed 60 days (ii) subject to customary exceptions), and take all such other actions as Purchaser the Holder or the underwriter(s) underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and PurchaserSecurities;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viiif) make available for inspection by PurchaserHolder, any underwriter participating in any the disposition pursuant to a such Registration Statement, Statement and any attorney, accountant or other agent retained by Purchaser Holder or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserany such seller, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts , and to cause all cooperate and participate as reasonably requested by any such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (andseller in road show presentations, in the case preparation of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendmenteach amendment and supplement thereto, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference included therein, and (ii) other activities as such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter seller may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Securities owned by such seller;
(g) advise the Holder, promptly after the Company will promptly notify Purchaser shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the SEC suspending the effectiveness of each such registration statement or the initiation or threatening of any proceeding for such purpose and use reasonable efforts promptly to prevent the issuance of any stop order or to obtain its withdrawal if such stop order is issued;
(h) at the request of the Holder furnish on the date or dates provided for in the underwriting agreement, if any, or upon the effective date of the Registration Statement Statement: (A) an opinion of counsel, addressed to the underwriters and the Holder, covering such matters as such underwriters and the Holder may reasonably request and as are customarily covered by the issuer’s counsel in an underwritten offering; and (B) a letter or any post-effective amendment or letters from the independent certified public accountants of the Company addressed to the underwriters, and the Holder covering such matters as such underwriters, and the Holder may reasonably request and as are customarily covered in accountant’s letters in connection with an underwritten offering;
(i) during such time as the Holder may be engaged in a distribution of Registrable Securities, comply with Regulation M promulgated under the Exchange Act, to the extent applicable;
(j) prepare and promptly file with the Commission and promptly notify the Holder of the filing of any such amendment or supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or Prospectus as may be necessary to correct any amendment thereto will not be subject statements or omissions if, at the time when a Prospectus relating to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees thatdelivered under the Securities Act, upon notice from the Company of the happening of any event shall have occurred as a the result of which the any such prospectus or any other Prospectus included (or deemed included) as then in such Registration Statement contains effect would include an untrue statement of a material fact or omits omit to state any material fact necessary to make the statements therein not misleading (a “Suspension Notice”)therein, Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use light of the Prospectus may circumstances under which they were made, not misleading;
(k) provide and cause to be resumed maintained a transfer agent and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; providedregistrar for all such registered Registrable Securities, however, that such postponement of sales of Registrable Common Stock by Purchaser shall in each case not exceed ninety (90) days in later than the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to registration; and
(l) comply in all material respects with all applicable securities laws (including all applicable rules and including the date Purchaser either is advised by the Company that the use regulations of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”SEC). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Repurchase Agreement (TRT Holdings Inc), Repurchase Agreement (Gaylord Entertainment Co /De)
Procedures. If, and to the extent, Oaktree Series B Demand Shares are to be registered, the term “Registrable Shares” shall be deemed to include such Oaktree Series B Demand Shares and the term “Investors” shall be deemed to include the Oaktree Investors, but only to the extent such terms are used in Article V or this Schedule 5.6. Upon receipt of a Demand Registration Request or a Piggyback Request from the Investors pursuant to Article V, the Parent shall:
(a) In promptly prepare and file a preliminary prospectus, prospectus supplement or registration statement, as applicable, under and in compliance with the Securities Laws in each jurisdiction in which the Registration is to be effected and such other related documents as may be necessary to be filed in connection with the such preliminary prospectus, prospectus supplement or registration statement and sale of Registrable Common Stock pursuant to this Agreementshall, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) with respect to a Registration in Canada, promptly prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock prospectus and use its commercially reasonable best efforts to cause a receipt to be issued for such Registration Statement to become effective prospectus as soon as practicable thereafter; and shall take all other steps and proceedings that may be required in order to qualify the securities being sold pursuant to such Registration, and/or (ii) with respect to a Registration in the United States, use its commercially reasonable efforts to promptly cause such registration statement to be declared or become effective in order to register the offer and sale of the securities being offered pursuant such Registration (provided that, before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed referred to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthis Section, the exhibits incorporated by reference, and Purchaser (and Parent shall furnish to the underwriter(scounsel to the Investors copies thereof), if any) which documents shall have be subject to the opportunity to review and comment thereon, and the Company will make of such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(scounsel), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iib) promptly prepare and file with the SEC such amendments and supplements to such Registration Statement preliminary prospectus and the Prospectus used in connection therewith prospectus or registration statement, as applicable, as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the applicable Securities Act Laws with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case distribution of the Shelf Registration StatementRegistrable Shares, prepare and to take such steps as are reasonably necessary to maintain the qualification of such prospectus supplements containing or the effectiveness of such disclosures as may registration statement until the time at which the distribution of the Registrable Shares sought to be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownsold is completed;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(ivc) use its commercially reasonable best efforts to register or qualify such Registrable Common Stock Shares under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) seller reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, provided that the Company will Parent shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)paragraph, (2ii) subject itself to taxation in any such jurisdiction or jurisdiction, (3iii) consent to general service of process in any such jurisdictionjurisdiction or (iv) register or qualify any Registrable Shares in any jurisdiction outside of Canada and the United States);
(vd) notify Purchaser cause to be furnished to the Investors, the underwriter or underwriters of any offering such number of copies of such preliminary prospectus, prospectus, registration statement and any underwriter(s)amendments and supplements thereto and such other customary opinions, at any time when a Prospectus relating thereto is required to be delivered under certificates, comfort letters and closing documents as the Securities Act, underwriters or the Investors may reasonably request;
(e) immediately notify the Investors and underwriters of the occurrence of any event as a result of which any Prospectus contains the preliminary prospectus, prospectus supplement, prospectus or registration statement, as then in effect, might include an untrue statement of a material fact or omits might omit any material fact that is required to be stated or that is necessary to make the statements any statement therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) misleading in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management light of the Company to be available to participate in, and to cooperate with circumstances in which it was made (other than facts or statements provided by the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasersInvestors or underwriters);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiiif) promptly notify Purchaser and the underwriter Investors (i) of receipt of any comment letters received from the SEC or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, Canadian Securities Commission with respect to the Registration Statement a registration statement, prospectus or any post-effective amendment, when the same has become effective;
documents incorporated therein and (2ii) of any written other request by the SEC SEC, the Canadian Securities Commission or any state securities authority for amendments or supplements to the Registration Statement a registration statement or any Prospectus prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding for additional information with respect to the issuance by registration statement and prospectus;
(g) comply with Securities Laws and the SEC rules, regulations and policies of the TSX, NASDAQ and of any stop order suspending other stock exchange or over the effectiveness of counter market on which the Registration StatementCommon Shares are then listed and/or traded;
(h) use its commercially reasonable efforts to provide such information as is required for any filings required to be made with the Financial Industry Regulatory Authority; and
(4i) in respect of any Demand Registration, enter into an underwriting agreement with the receipt underwriters for the offering containing such representations and warranties by the Company of any notification Parent and such other terms and provisions as are customarily contained in underwriting agreements with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdictionsecondary distributions.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Investor Rights Agreement (Engaged Capital LLC), Securities Subscription Agreement (SunOpta Inc.)
Procedures. (a) In connection with Whenever required under this ARTICLE IV to effect the registration and sale Registration of any Registrable Common Stock pursuant to this AgreementSecurities, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(ia) prepare and file with the SEC Commission a Registration Statement with respect to such those Registrable Common Stock Securities and use its reasonable best efforts to cause such that Registration Statement to become effective, and, keep the Registration Statement effective as soon as practicable thereafterand current for the earlier of ninety (90) days or until the date on which all Registrable Securities included in such Registration Statement shall have been sold or shall have otherwise ceased to be Registrable Securities; provided, that a Shelf Registration shall be kept effective and current for the earlier of eighteen (18) months or until the date on which all Registrable Securities included in such Registration Statement shall have been sold or shall have otherwise ceased to be Registrable Securities, subject to Section 4.1; provided further that before filing a such Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, the Company will furnish to Purchaser and the underwriter or underwriters, if any, counsel selected by the Investor copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iib) prepare and file with the SEC such Commission amendments and supplements to such that Registration Statement and the Prospectus prospectus or prospectus supplement used in connection therewith with the Registration Statement as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the U.S. Securities Act Law with respect to the disposition of all securities Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iiic) furnish to Purchaser such the Investor and underwriters the number of copies of such Registration Statementa prospectus, each amendment including a preliminary prospectus, required by U.S. Securities Laws, and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such any other documents as Purchaser and any underwriter(s) they may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 owned by the CompanyInvestor;
(ivd) use its reasonable best efforts to register Register and qualify the Securities covered by the Registration Statement under U.S. Securities Laws, as reasonably requested by the Investor or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, underwriters; provided that the Company will shall not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)business, (2) subject itself to taxation in any such jurisdiction or (3) file a general consent to general service of process in any such jurisdiction)jurisdictions; and provided further that in the event any jurisdiction in which the Securities shall be qualified imposes a non-waivable requirement that expenses incurred in connection with the qualification of the Securities be borne by the selling Shareholders, those expenses shall be payable by such selling Shareholders on a pro rata basis;
(ve) in the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement in customary form (including indemnification provisions and procedures customary in underwritten offerings) and take all such other actions reasonably requested by the underwriters to expedite or facilitate the underwritten disposition of such Registrable Securities (including making its officers and management team available for investor road shows, sales events, marketing activities and other meetings) and in connection therewith in any underwritten offering, (i) make such representations and warranties to the underwriters and the Investor with respect to the business of the Company and its Subsidiaries, and the Registration Statement, prospectus and documents incorporated or deemed to be incorporated by reference therein, in each case, in customary form and confirm the same if and when requested, (ii) furnish opinions of counsel to the Company, addressed to the underwriters covering the matters customarily covered in such opinions requested in underwritten offerings, (iii) use its reasonable best efforts to obtain “comfort” letters from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any business acquired by the Company for which financial statements or financial data are included in the Registration Statement) who have certified the financial statements included in the Registration Statement, addressed to the underwriters, such letters to be in customary form and covering matters of the type customarily covered in “comfort” letters and (iv) deliver such documents and certificates as may be reasonably requested by the Investor whose Registrable Securities being sold in connection therewith, its counsel and the underwriters to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company;
(f) promptly notify the Investor: (i) when the Registration Statement, the prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed, and, with respect to the Registration Statement or any post-effective amendment thereto, when the same has become effective; (ii) of any request by the Commission for amendments or supplements to the Registration Statement or the prospectus used in connection with the Registration Statement or any additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose; and (iv) of the receipt by the Company of any written notification with respect to the suspension of the qualification of any Registrable Securities for sale in any jurisdiction or the initiation or overt threat of any proceeding for such purpose;
(g) notify Purchaser and any underwriter(s)the Investor, at any time when a Prospectus prospectus relating thereto is required to be delivered under the U.S. Securities ActLaws, of the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and, at misleading in the request light of Purchaser or any underwriter(s), the Company shall circumstances then existing and promptly prepare a supplement or post-effective amendment to such Prospectus Registration Statement or a supplement to the related prospectus and file any other required document, and prepare and furnish to the Investor and underwriters a reasonable number of copies of a supplement to or an amendment of such prospectus as may be necessary, so that, as thereafter supplemented and/or amendeddelivered to the Investor and any underwriters, such Prospectus shall the prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(vih) use its reasonable best efforts to prevent the issuance or obtain the withdrawal of any order suspending the effectiveness of any Registration Statement at the earliest practicable time;
(i) if any such Registration Statement refers to the Investor by name or otherwise as the holder of any Securities, and if the Investor is advised by counsel that it is or may be deemed to be a control person in relation to, or an Affiliate of, the Company, then the Investor shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to the Investor, to the effect that the holding by the Investor is not to be construed as a recommendation by the Investor of the investment quality of the Company’s Securities covered thereby and that such holding does not imply that the Investor will assist in meeting any future financial requirements of the Company, or (ii) in the case event that such reference to the Investor by name or otherwise is not, based on the advice of an underwritten offeringthe counsels to the Company, the Investor and if applicable, the underwriters, required by the Securities Act or any similar federal statute then in force, the deletion of the reference to the Investor;
(ij) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser if requested by the Investor or the underwriter(s) underwriters, include in a prospectus supplement or amendment to the Registration Statement such information as reasonably request required to be included therein in order to expedite or facilitate permit the disposition intended method of distribution of the Registrable Securities and make all required filings of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and prospectus supplement or such amendment as soon as practicable after the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions Company’s receipt of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchasersuch request;
(viik) in connection with each Demand Registration provide a transfer agent and registrar for all Registrable Securities Registered pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation the Registration Statement and, where applicable, a number assigned by the Committee on Uniform Securities Identification Procedures for all those Registrable Securities, in all other cases, cause members of senior management each case not later than the effective date of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers)Registration;
(viiil) subject to the execution of confidentiality agreements reasonably satisfactory in form and substance to the Company, pursuant to the reasonable request of the Investor or underwriters, make available for inspection by Purchaserthe Investor, any underwriter underwriters participating in any disposition pursuant to a Registration Statement, Statement and any attorney, accountant attorneys or accountants or other agent agents retained by Purchaser any such underwriters or underwriterselected by the Investor, all pertinent financial and other records, pertinent corporate documents documents, and properties of the Company, and cause the Company’s officers, directors, employees employees, and independent accountants to supply all information reasonably requested by Purchaserthe Investor, any underwriterunderwriters, any attorneyattorneys, any accountant accountants, or any agent agents, in each case, as necessary or advisable to verify the accuracy of the information in such Registration Statement and to conduct appropriate due diligence in connection with such Registration Statementtherewith;
(ixm) use its reasonable best efforts to cause all the transfer agent to remove restrictive legends on certificates representing the securities covered by such Registration Statement, as appropriate and settle any offering or sale of Registrable Securities, including with respect to the transfer of physical stock certificates into book-entry form in accordance with any procedures reasonably requested by the Investor or underwriters;
(n) cooperate with the Investor and the underwriters to facilitate the timely delivery of Registrable Securities to be sold and to enable such Registrable Common Stock Securities to be issued in such denominations and registered in such names as the Investor may reasonably request at least two (2) Business Days prior to the closing of any sale of Registrable Securities; and
(o) use its reasonable best efforts to cause the Registrable Securities to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdictionNasdaq.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 2 contracts
Sources: Investor Rights Agreement (Weichai America Corp.), Investor Rights Agreement (Power Solutions International, Inc.)
Procedures. (a) In connection with The Corporation will, subject to the registration and sale of Registrable Common Stock pursuant to this Agreementlimitations provided herein, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and possible: use its reasonable best efforts to cause such Registration Statement to become effective and to remain continuously effective for a period that will terminate upon the earlier of (i) the date on which all Registrable Securities, covered by such Registration Statement, as soon as practicable amended from time to time, have been sold, and (ii) the date on which all Registrable Securities may be sold pursuant to Rule 144(k) (the "Registration Period"); prepare and file with the SEC the requisite registration statement to effect such registration, and thereafter, use reasonable efforts to cause such registration statement to become effective; and provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (thereto, including any prospectus supplement for a shelf takedown)documents incorporated by reference, the Corporation will furnish to Purchaser counsel to the Holders of the Registrable Securities covered by such registration statement and the managing underwriter or underwriters, if any, draft copies of all such documents proposed to be filedfiled (other than exhibits, including unless so requested) a reasonable time prior thereto, which documents incorporated by reference in will be subject to the Prospectus and, if requested by Purchaser, the exhibits incorporated by referencereasonable review of such counsel and such Holders and underwriters, and Purchaser (will notify each Holder of the Registrable Securities of any stop order issued by the SEC in connection therewith and the underwriter(s), if any) shall have the opportunity take all reasonable actions required to review and comment thereon, and the Company will make remove such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) stop order; prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement andregistration statement; provided however that the Corporation may, at any time, delay the filing or suspend the effectiveness of any registration under this Agreement, or without suspending such effectiveness, instruct the Purchasers not to sell any Registrable Securities included in any such registration, (i) if the case Corporation shall have determined upon the advice of counsel that the Shelf Registration StatementCorporation would be required to disclose any actions taken or proposed to be taken by the Corporation in good faith and for valid business reasons, prepare including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Corporation or on such actions, or (ii) if required by law, to update the prospectus supplements containing relating to any such disclosures as may be reasonably requested registration to include updated financial statements (a "Suspension Period") by Purchaser or any underwriter(s) in connection providing the Purchasers with each shelf takedown;
(iii) furnish to Purchaser such number of copies written notice of such Registration Statement, each amendment Suspension Period and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, reasons therefore; provided, however, that the Company Corporation will not be required to disclose such reasons with particularity if an authorized executive officer of the Corporation certifies that the Corporation believes it is required by law to delay the filing or suspend the effectiveness of any such registration. In addition, the Corporation shall have no not be required to keep any registration effective, or may without suspending such obligation effectiveness, instruct the Purchasers if it has Registrable Securities included in such registration not to sell such securities, during any period which the Corporation is instructed, directed, ordered or otherwise requested by any governmental agency or self-regulatory organization to stop or suspend such trading or sales ("Supplemental Extension Period"). In the event of a Suspension Period or Supplemental Extension Period, the period during which any registration under this Agreement is to remain effective pursuant to this Section 3.1(b) shall be tolled until the end of any such Suspension Period or Supplemental Extension Period. The Corporation will restrict any Suspension Period or Supplemental Extension Period to less than 30 days; furnish to the Purchasers such number of conformed copies of a final such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus if the conditions of contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 172(c) 424 under the Securities Act are satisfied by Act, and such other documents, as the Company;
(iv) Purchasers may reasonably request; use its reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic as each seller thereof shall reasonably request and to keep such registration or foreign) qualification in effect for so long as Purchaser such registration statement remains in effect, and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such seller, except that the Company will Corporation shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 3.1(d) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction);
(v) ; use its reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Purchasers to consummate the disposition of such Registrable Securities; notify Purchaser and any underwriter(s)in writing the Purchasers, if Registrable Securities are covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, and at the request of Purchaser or any underwriter(s), the Company shall Purchasers prepare and furnish to the Purchasers a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date purchasers of such Registration Statement;
(xi) if requestedsecurities, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of such prospectus shall not include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty light of the circumstances under which they were made. otherwise use reasonable efforts to comply with respect to information relating to Purchaser furnished to all applicable rules and regulations of the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall SEC and make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following the resolution or clearance of all SEC comments orreasonably practicable, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue earnings statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend covering the period of time during which at least twelve months beginning with the Company is required to maintain first full calendar month after the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of such registration statement, which earnings statement shall satisfy the giving provisions of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use Section 11(a) of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with ; any securities exchange on which any of the Corporation's Common Stock is then listed.provide and cause to be maintained a transfer agent for all Registrable Securities covered by such registration statement covering from and after a date not later than the effective date of such registration statement; and use its reasonable efforts to list all Registrable Common Stock, without the prior written consent of Purchaser and any underwriterSecurities covered by such registration statement.
Appears in 2 contracts
Sources: Registration Rights Agreement (Platinum Research Organization, Inc.), Registration Rights Agreement (Platinum Research Organization, Inc.)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this AgreementShelf Registration Statement, the Company shall shall:
(i) use its reasonable best efforts to effect the such registration and to permit the sale of such Registrable Common Stock the Transfer Restricted Securities being sold in accordance with Purchaser’s the intended method or methods of disposition thereofdistribution thereof (as indicated in the information furnished to the Company pursuant to Section 3(b) hereof), and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) will prepare and file with the SEC Commission a Shelf Registration Statement relating to the registration on any appropriate form under the Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with respect the intended method or methods of distribution thereof (including, without limitation, one or more underwritten offerings) within the time periods and otherwise in accordance with the provisions hereof. The Company shall not be permitted to such Registrable Common Stock and use its reasonable best efforts to cause such include in the Shelf Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and securities other than the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoTransfer Restricted Securities;
(ii) prepare use its best efforts to contact all Holders of Transfer Restricted Securities and file with the SEC such amendments and supplements notify each Holder of its right to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the include its Transfer Restricted Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify keep such Registrable Common Stock under such other securities or blue sky laws Shelf Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of Agreement. Upon the occurrence of any event as a result of which that would cause any such Shelf Registration Statement or the Prospectus contains an untrue statement of a material fact or omits any material fact necessary contained therein (A) to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
misleading or (viB) in not to be effective and usable for resale of Transfer Restricted Securities during the case of period required by this Agreement, the Company shall file promptly an underwritten offeringappropriate amendment to such Shelf Registration Statement curing such defect, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other casesif Commission review is required, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock amendment to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the declared effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after practicable. Notwithstanding the end foregoing, the Company may suspend the offering and sales under the Shelf Registration Statement for up to 60 days in each year during which such Shelf Registration Statement is required to be effective and usable hereunder (measured from the date of effectiveness of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(aShelf Registration Statement to successive anniversaries thereof) of the Securities Act; and
if (xiiiA) promptly notify Purchaser and the underwriter or underwriters, if any:either (y)
(1) when the Company shall be engaged in a material acquisition or disposition and (2)(aa) such acquisition or disposition is required to be disclosed in the Shelf Registration Statement, any pre-effective amendmentthe related Prospectus, the Prospectus or any Prospectus amendment or supplement thereto, or post-effective amendment the failure by the Company to disclose such transaction in the Registration Statement has been filed and, with respect to the Shelf Registration Statement or any post-effective amendmentrelated Prospectus, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any amendment or supplement thereto, as then amended or supplemented, would cause such Shelf Registration Statement, Prospectus or of any inquiry by the SEC relating amendment or supplement thereto, to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any an untrue statement of a material fact or omit to state a material fact necessary in order to make the statement therein not misleading, in light of the circumstances under which they were made, (bb) information regarding the existence of such acquisition or disposition has not then been publicly disclosed by or on behalf of the Company and (cc) a majority of the Board of Directors of the Company determines in the exercise of its good faith judgment that disclosure of such acquisition or disposition would not be in the best interest of the Company and would have a material adverse effect on the consummation of such acquisition or disposition or (z) a majority of the Board of Directors of the Company determines in the exercise of its good faith judgment that compliance with the disclosure obligations set forth in this Section 5(a)(iii) would otherwise have a material adverse effect on the Company and its subsidiaries, taken as a whole, and (B) the Company notifies the Holders within two business days after such Board of Directors makes the relevant determination set forth in clause (A); provided, however, that in each such case the applicable period specified in Section 3 hereof during with the applicable Shelf Registration Statement is required to be kept effective and usable shall be extended by the number of days during which such effectiveness was suspended pursuant to the foregoing and Liquidated Damages shall not apply during any period in which the Company is permitted to suspend offerings and sales under this sentence;
(iv) prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period set forth in Section 3 hereof, cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the Act in a timely manner; and comply with the provisions of the Act with respect to the disposition of all Transfer Restricted Securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Shelf Registration Statement or supplement to the Prospectus;
(v) advise the Holders and underwriters, if any, promptly and, if requested by such Persons, confirm such advice in writing, (A) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to any Shelf Registration Statement or any post-effective amendment thereto, when the same has become effective, (B) of any request by the Commission for amendments to the Shelf Registration Statement or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement under the Act or of the suspension by any state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any jurisdiction, or the initiation of any proceeding for any of the preceding purposes, and (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Shelf Registration Statement in order to make the statements therein not misleading, or that requires the making of any additions to or changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(vi) subject to Section 5(a)(iii), if any fact or event contemplated by Section 5(v)(D) above shall exist or have occurred, prepare a supplement or post-effective amendment to the Shelf Registration Statement or related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(vii) furnish to each Holder named in any Shelf Registration Statement or Prospectus, who shall certify to the Company that they have a present intention to sell Transfer Restricted Securities, and underwriter, if any, in connection with such sale before filing with the Commission, copies of any Shelf Registration Statement or any Prospectus included therein or any amendments or supplements to any such Shelf Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Shelf Registration Statement), except that the foregoing provision will not apply to regular periodic reports filed with the Commission on Forms 10-Q or 10-K or Current Reports on Form 8-K (or any similar successor forms), or exhibits to any such documents unless requested, which documents will be subject to the review and comment of such Persons in connection with such sale, if any, for a period of at least five Business Days, and the Company will not file any such Shelf Registration Statement or Prospectus or any amendment or supplement to any such Shelf Registration Statement or Prospectus (including all such documents incorporated by reference) to which such Persons shall reasonably object within five Business Days after the receipt thereof;
(viii) promptly prior to the filing of any document that is to be incorporated by reference into a Shelf Registration Statement or Prospectus, provide copies of such document to the Holders except that the foregoing provision will not apply to regular periodic reports filed with the Commission on Forms 10-Q or 10-K or Current Reports on Form 8-K (or any similar successor forms), or exhibits to any such documents unless requested, and underwriters, if any, in connection with such sale, make the Company's representatives available for discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such Holders may reasonably request;
(ix) make available at reasonable times for inspection by the Holders and underwriters, if any, and any attorney or accountant retained by such Holders, who shall certify to the Company that they have a present intention to sell Transfer Restricted Securities, or underwriters, if any, all financial and other records, pertinent corporate documents of the Company and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Holder, underwriters, if any, attorney or accountant in connection with such Shelf Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness which, in the reasonable judgment of counsel for the Company, are necessary to conduct a reasonable investigation within the meaning of Section 11 of the Act; PROVIDED, HOWEVER, that each such party shall be required to maintain in confidence and not disclose to any other person any information or records designated in writing by the Company as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in such registration statement or otherwise), or (B) such person shall be required, or shall deem it advisable, so to disclose such information pursuant to a subpoena or order of any court or other governmental agency or body having jurisdiction over the matter (subject to the requirements of such order, and only after such person shall have given the Company prior written notice thereof), or (C) such information is required to be set forth in such registration statement or the prospectus included therein or in an amendment to such registration statement or an amendment or supplement to such prospectus in order that such registration statement, prospectus, amendment or supplement, as the case may be, does not contain an untrue statement of a material fact or omit to state therein a material fact required to be stated therein, therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(except that the Company makes no representation x) if requested by any Holders or warranty underwriters, if any, in connection with respect such sale, promptly include in any Shelf Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Holders or underwriters, if any, may reasonably request to have included therein, including, without limitation, information relating to Purchaser furnished to the "Plan of Distribution" of the Transfer Restricted Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company by is notified of the matters to be included in such Prospectus supplement or on behalf of Purchaser specifically for use therein).post-effective amendment;
(cxi) The Company shall make available furnish to Purchaser (i) promptly after each Holder and underwriter, if any, without charge, at least one copy of the same is prepared and publicly distributedShelf Registration Statement, as first filed with the SECCommission, or received by the Company, one copy and of each Registration Statement amendment thereto, including, at the request of such Holder, all documents incorporated by reference therein and all exhibits (including, at the request of such Holder, exhibits incorporated therein by reference);
(xii) deliver to each Holder and underwriter, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment thereto, each preliminary or supplement thereto as such Persons reasonably may request; the Company hereby consents to the use (in accordance with law) of the Prospectus and Prospectus any amendment or supplement thereto by each Holder and each underwriter, if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto;
(xiii) upon the request of Holders of 25% or more in principal amount (or number of shares, as the case may be) of Transfer Restricted Securities or an initial purchaser in the case where an initial purchaser holds Transfer Restricted Securities acquired as part of its initial placement, if any, enter into such agreements (including underwriting agreements) and make such representations and warranties and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Securities pursuant to any Shelf Registration Statement contemplated by this Agreement as may be reasonably requested by such Person in connection with any sale or resale pursuant to any applicable Shelf Registration Statement and in such connection, the Company shall:
(A) furnish (or in the case of paragraphs (2), (3) and (4) below, use its best efforts to cause to be furnished) to each letter written by Holder or underwriter, if any, upon the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such date, signed on behalf of the Company to by (x) the SEC President or the staff any Vice President and (y) a principal financial or accounting officer of the SEC (or other governmental agency or self-regulatory body or other body having jurisdictionCompany, including any domestic or foreign securities exchangeconfirming, as of the date thereof, the matters set forth in Sections 6(aa), 9(a) and each item of correspondence from the SEC or the staff 9(b) of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto Purchase Agreement and such other documents similar matters as Purchaser or any underwriter the Holders may reasonably request in order to facilitate request;
(2) an opinion, dated the disposition date effectiveness of the Registrable Common Stock. The Shelf Registration Statement, of outside counsel for the Company will promptly notify Purchaser covering matters similar to those set forth in Exhibit A of the Purchase Agreement and such other matters as the selling Holders may reasonably request, including the ultimate paragraph of Exhibit A relating to the Shelf Registration Statement;
(3) an opinion, dated the date effectiveness of each the Shelf Registration Statement or any post-effective amendment or Statement, of general counsel for the filing Company covering matters similar to those set forth in Exhibit B of any supplement or amendment to the Purchase Agreement and such other matter as the selling Holders may reasonably request; and
(4) a customary comfort letter, dated as of the date of effectiveness of the Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SECCompany's independent accountants, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by in the SEC as soon as practicable customary form and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company covering matters of the happening of any event as a result of which type customarily covered in comfort letters to underwriters in connection with underwritten offerings, and affirming the Prospectus included (or deemed included) matters set forth in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock comfort letters delivered pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)9(g) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; Purchase Agreement, provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required not obligated to maintain pay the applicable Registration Statements effective pursuant to this Agreement costs and expenses of counsel for the selling shareholders; and
(B) deliver such other documents and certificates as may be reasonably requested by the number of days during the period from Holders and including the date of the giving of such Suspension Notice underwriters, if any, to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.evi
Appears in 1 contract
Sources: Registration Rights Agreement (General Semiconductor Inc)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicableTerreStar shall:
(i) prepare and file with the SEC a the Shelf Registration Statement on any form which may be utilized by TerreStar and which shall permit the disposition of the Registrable Shares covered by the Shelf Registration Statement in accordance with respect to such Registrable Common Stock the intended method or methods thereof, as specified in writing by Holder, and use its commercially reasonable best efforts to cause such the Shelf Registration Statement to become effective as soon as practicable thereafter; and in accordance with Section 6.1(a);
(ii) before filing a the Shelf Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)with the SEC, furnish to Purchaser and the underwriter or underwriters, if any, Holder copies of all such documents proposed to be filedfiled and consider for inclusion in such document when so filed with the SEC such comments as Holder shall have proposed within 3 Business Days of the delivery of such copies to Holder; provided, including documents incorporated by reference that if Holder elects to be named as an “underwriter” in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(sany Shelf Registration Statement pursuant to Section 6.1(c), if any) then TerreStar shall have the opportunity be obligated to review and comment thereon, and the Company will make include Holder’s comments in such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Shelf Registration Statement or amendment thereto Prospectus, except that TerreStar shall not be required to include such Holder’s comments in such Shelf Registration Statement or any Prospectus or any supplement theretothat are not, in the reasonable advice of nationally-recognized counsel for TerreStar experienced in such matters, advisable;
(iiiii) use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements post-effective amendments to such the Shelf Registration Statement and file with the Prospectus used in connection therewith SEC any other required document as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement continuously effective until the Registration End Date; cause the related Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (plus, or any similar provisions then in each case, force) under the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement Securities Act; and comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities Registrable Shares covered by such the Shelf Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof Holder set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare Statement as so amended or such prospectus supplements containing such disclosures Prospectus as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Companyso supplemented;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
Holder (1A) when the Shelf Registration Statement, any pre-effective amendment, Statement or the Prospectus included therein or any amendment or supplement to the Prospectus supplement or post-effective amendment to the Registration Statement has been filed with the SEC, and, with respect to the Shelf Registration Statement or any post-effective amendment, when the same has become effective;
, (2B) of any written request request, following the effectiveness of the Shelf Registration Statement, by the SEC or any other Governmental Authority for amendments or supplements to the Shelf Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
related Prospectus, (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Shelf Registration Statement; and
Statement or the initiation or written threat of any proceedings for that purpose, (4D) of the receipt by the Company TerreStar of any notification with respect to the suspension of the qualification of the Registrable Shares for sale in any jurisdiction or the initiation or written threat of any proceeding for such purpose, (E) of the occurrence of (but not the nature of or details concerning) any event or the existence of any fact (a “Material Event”) as a result of which the Shelf Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (F) of the determination by TerreStar that a post-effective amendment to the Shelf Registration Statement will be filed with the SEC, which notice may, at the discretion of TerreStar (or as required pursuant to Section 6.2(b)), state that it constitutes a Deferral Notice, in which event the provisions of Section 6.2(b) shall apply or (G) at any time when a Prospectus is required to be delivered under the Securities Act, that the Shelf Registration Statement, Prospectus, Prospectus amendment or supplement or post-effective amendment does not conform in all material respects to the applicable requirements of the Securities Act and the rules and regulations of the SEC thereunder;
(v) use commercially reasonable efforts to register or qualify, or cooperate with Holder and its counsel in connection with the registration or qualification of, such Registrable Common Stock Shares for offer and sale under the applicable securities or blue sky laws Laws of such jurisdictions as Holder reasonably requests in writing, to the extent required by Law, and do any and all other acts or things reasonably necessary or advisable to enable the offer and sale in such jurisdictions of such Registrable Shares; prior to any public offering of the Registrable Shares pursuant to the Shelf Registration Statement, subject to Section 6.2(b), use commercially reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective until the Registration End Date in connection with Holder’s offer and sale of Registrable Shares pursuant to such registration or qualification (or exemption therefrom) and do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of such Registrable Shares in the manner set forth in the Shelf Registration Statement and the related Prospectus, to the extent required by Law; provided, that TerreStar will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process or to taxation in any such jurisdiction where it is not then so subject;
(vi) use commercially reasonable efforts to prevent the issuance of, and if issued, to obtain the withdrawal of any jurisdictionorder suspending the effectiveness of the Shelf Registration Statement or any post-effective amendment thereto, and to lift any suspension of the qualification of Registrable Shares for sale in any jurisdiction in which they have been qualified for sale, in each case at the earliest practicable date;
(vii) if reasonably requested by Holder, promptly incorporate in a prospectus supplement or post-effective amendment to the Shelf Registration Statement such information that Holder shall, on the basis of advice of nationally-recognized counsel experienced in such matters, determine to be required to be included therein by applicable Law and make any required filings of such prospectus supplement or such post-effective amendment; provided, that TerreStar shall not be required to take any actions under this Section 6.2(a)(vii) that are not, in the reasonable advice of nationally-recognized counsel for TerreStar experienced in such matters, in compliance with applicable Law;
(viii) promptly furnish to Holder, upon its request and without charge, at least 1 conformed copy of the Shelf Registration Statement and any amendments thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits; provided, however, that TerreStar shall have no obligation to deliver to Holder a copy of any amendment consisting exclusively of an Exchange Act report or other Exchange Act filing otherwise publicly available on TerreStar’s website;
(ix) while the Shelf Registration Statement is in effect, deliver to Holder in connection with any sale of Registrable Shares pursuant to the Shelf Registration Statement, upon its request and without charge, as many copies of the Prospectus relating to such Registrable Shares (including each preliminary prospectus) and any amendment or supplement thereto as Holder may reasonably request; and TerreStar hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by Holder in connection with any offering and sale of the Registrable Shares covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein; and
(x) cooperate with Holder to facilitate the timely preparation and delivery of certificates representing Registrable Shares to be sold pursuant to the Shelf Registration Statement free of any restrictive legends and in such denominations and registered in such names as Holder may request in writing at least two business days prior to sales of Registrable Shares pursuant to the Shelf Registration Statement.
(b) The Company represents and warrants that no Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf Registration Statement under section 8(d) or 8(e) of the Securities Act, (including B) the occurrence of any amendments event or supplements thereto and Prospectuses contained therein) the existence of any Material Event as a result of which the Shelf Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) a determination by TerreStar’s Board of Directors that, prior to the effective date of any Shelf Registration Statement, effecting the registration would adversely affect an offering of securities of TerreStar the preparation of which has then been commenced, or that TerreStar is in possession of material non-public information the disclosure of which would not be in the best interest of TerreStar, TerreStar will give notice to Holder that the availability of the Shelf Registration Statement is suspended for a period not to exceed 45 days (a “Deferral Notice”). Upon receipt of any Deferral Notice, Holder shall not sell any Registrable Shares pursuant to the Shelf Registration Statement until Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by TerreStar that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. TerreStar will use commercially reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of TerreStar, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of TerreStar or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (z) in the case of clause (C) above, as soon as, in the discretion of TerreStar, such suspension is no longer appropriate. TerreStar shall not issue in excess of 2 Deferral Notices in any 365 day period, and shall not issue any Deferral Notice within 60 days of any other Deferral Notice.
(c) Upon receipt of a Deferral Notice, Holder shall forthwith discontinue (and cause any placement or sales agent or underwriters acting on its behalf to discontinue) the disposition of Registrable Shares pursuant to the Shelf Registration Statement until Holder (i) shall have received copies of such amended or supplemented Prospectus and, if so directed by TerreStar, Holder shall deliver to TerreStar all copies, other than permanent file copies, then in Holder’s possession of the Prospectus covering such Registrable Shares at the time of receipt of such notice or (ii) shall have received notice from TerreStar that the disposition of Registrable Shares pursuant to the Shelf Registration Statement may continue.
(d) TerreStar may require Holder to furnish to TerreStar such information regarding Holder and its intended method of distribution of such Registrable Shares as TerreStar may from time to time reasonably request in writing, but only to the extent that such information is required in order to comply with the Securities Act or other applicable Law. Holder shall notify TerreStar as promptly as practicable of any inaccuracy or change in information previously furnished by Holder to TerreStar or of the occurrence of any event in either case as a result of which any Prospectus relating to such registration contains or would contain an untrue statement of a material fact regarding Holder or Holder’s intended method of disposition of such Registrable Shares or omits to state any material fact regarding Holder or Holder’s intended method of disposition of such Registrable Shares required to be stated therein or necessary to make the statements therein not misleading, and promptly to furnish to TerreStar any additional information required to correct and update any previously furnished information or required so that such Prospectus shall not contain, with respect to Holder or the disposition of such Registrable Shares, an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein)misleading.
(ce) The Company TerreStar shall comply with all applicable rules and regulations of the SEC and make generally available to Purchaser its securityholders earning statements satisfying the provisions of section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under the Securities Act) no later than (i) promptly 40 days after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy end of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC 12-month period (or other governmental agency or self60 days after the end of any 12-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to month period if such Registration Statement or to any of the documents incorporated by reference therein, period is a fiscal year) if TerreStar is at such time an “accelerated filer” and (ii) 45 days after the end of any 12-month period (or 90 days after the end of any 12-month period if such number period is a fiscal year) if TerreStar is not an “accelerated filer” commencing on the first day of copies the first fiscal quarter of each ProspectusTerreStar commencing after the effective date of the Shelf Registration Statement, which statements shall cover said 12-month periods.
(f) TerreStar shall use commercially reasonable efforts to provide such information as is required for any filings required to be made with FINRA.
(g) TerreStar shall enter into customary agreements and use commercially reasonable efforts to take all other necessary and lawful actions in connection therewith in order to expedite or facilitate disposition of the Registrable Shares.
(h) If requested by Investors holding more than one-third of the then-outstanding Investors Shares, there shall be a single Underwritten Offering (for this Agreement and all Other Agreements together) for all Investors who wish to participate therein, apart from the one additional Underwritten Offering provided for in Section 6.1(d). The Underwritten Offering may be effected as a take-down off of any Shelf Registration Statement or, if unavailable, pursuant to the filing by TerreStar of a new Registration Statement or the combination of one or more Shelf Registration Statements. The Investor or Investors requesting the Underwritten Offering shall have the right to select the managing underwriter(s) to administer the Underwritten Offering, subject to the prior approval of TerreStar, which approval shall not be unreasonably withheld, conditioned or delayed. TerreStar agrees to enter into such agreements (including a preliminary Prospectusunderwriting agreements in customary form), and take all amendments and supplements thereto and such other documents actions as Purchaser the Investor or any underwriter may the underwriter(s) reasonably request in order to expedite or facilitate the disposition of Underwritten Offering (including causing senior management and other Company personnel to cooperate with the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser Investors and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Actunderwriter(s) in connection with performing due diligence). TerreStar shall pay for all Registration Expenses incident to such Underwritten Offering pursuant to Section 6.6, but not including any registration statement covering Registrable Common Stockunderwriting discounts or commissions incurred by the Investors in such Underwritten Offering. In the event there is a second Underwritten Offering pursuant to Section 6.1(d), without the prior written consent of Purchaser and any underwriter.or if an attempted Underwritten Offering is
Appears in 1 contract
Sources: Agreement for Transfer and Exchange (Skyterra Communications Inc)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this AgreementShelf Registration Statement, the Company shall shall:
(i) use its reasonable best efforts to effect the such registration and to permit the sale of such the Registrable Common Stock Securities being sold in accordance with Purchaser’s the intended method or methods of disposition thereofdistribution thereof (as indicated in the information furnished to the Company pursuant to Section 3(b) hereof), and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) will prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of Commission a Shelf Registration Statement (plusrelating to the registration on any appropriate form under the Act, in each case, which form shall be available for the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution sale of the securities covered by such Registration Statement and comply with the provisions of the Registrable Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by Purchaser distribution thereof set forth (including, without limitation, one or more underwritten offerings) within the time periods and otherwise in such Registration Statement and, accordance with the provisions hereof. The Company shall not be permitted to include in the case of the Shelf Registration Statement any securities other than the Registrable Securities.
(ii) use its best efforts to contact all Holders of Registrable Securities and notify each Holder of its right to include its Registrable Securities in such Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;.
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify keep such Registrable Common Stock under such other securities or blue sky laws Shelf Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of Agreement. Upon the occurrence of any event as a result of which that would cause any such Shelf Registration Statement or the Prospectus contains an untrue statement of a material fact or omits any material fact necessary contained therein (A) to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
misleading or (viB) in not to be effective and usable for resale of Registrable Securities during the case of period required by this Agreement, the Company shall file promptly an underwritten offeringappropriate amendment to such Shelf Registration Statement curing such defect, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other casesif Commission review is required, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock amendment to be listed on NASDAQdeclared effective as soon as practicable.
(iv) prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period set forth in Section 3 hereof, or cause the Prospectus to be supplemented by any exchange on which securities required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the Act in a timely manner; and comply with the provisions of the same class issued Act with respect to the disposition of all Registrable Securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Company are then listed or, if no sellers thereof set forth in such similar securities are then listed, on a national securities exchange selected by Shelf Registration Statement or supplement to the Company and agreed to by PurchaserProspectus;
(xv) provide a transfer agent advise the Holders and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriterunderwriters, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; promptly and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
requested by such Persons, confirm such advice in writing, (1A) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed filed, and, with respect to the any Shelf Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective;
effective or (2B) of any written request by the SEC Commission for amendments to the Shelf Registration Statement or amendments or supplements to the Registration Statement or any Prospectus or for additional information relating thereto. If at any time any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any inquiry by the SEC relating Registrable Securities under state securities or Blue Sky laws, the Company shall use its best efforts to obtain the Registration Statement withdrawal or lifting of such order at the Company’s status as a well-known seasoned issuerearliest possible time;
(3vi) of the notification to the Company by the SEC of its initiation of any proceeding with respect to Upon (A) the issuance by the SEC Commission of any a stop order suspending the effectiveness of the Shelf Registration Statement; and
(4) Statement or the initiation of the receipt by the Company of any notification proceedings with respect to the suspension Shelf Registration Statement under Section 8(d) or 8(e) of the qualification Securities Act, (B) the occurrence of any Registrable Common Stock for sale under event or the applicable securities or blue sky laws existence of any jurisdiction.
fact (ba "Material Event") The Company represents and warrants that no as a result of which any Shelf Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein, therein or necessary to make the statements therein not misleading misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (except that C) the Company occurrence or existence of any pending corporate development that, in the discretion of the Company, makes no representation or warranty with respect it appropriate to information relating to Purchaser furnished to suspend the Company by or on behalf availability of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser the Shelf Registration Statement and the related Prospectus, (i) promptly after in the same is prepared and publicly distributedcase of clause (B) above, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company subject to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdictionnext sentence, including any domestic or foreign securities exchange), as promptly as practicable prepare and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including file a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Shelf Registration Statement and Prospectus so that such Shelf Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Shelf Registration Statement, subject to the next sentence, use all reasonable efforts to cause it to be declared effective as promptly as is reasonably practicable, and (ii) give notice to the Holders that the availability of the Shelf Registration Statement is suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Holder's receipt of copies of the supplemented or amended Prospectus supplementprovided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly respond as is practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as reasonable practicable thereafter and (z) in the case of clause (C) above, as soon as, in the discretion of the Company, such suspension is no longer appropriate. The period during which the availability of the Shelf Registration Statement and any Prospectus is suspended (the "Deferral Period") shall, without the Company incurring any obligation to pay liquidated damages pursuant to Section 4, not exceed forty-five (45) days in any three (3) month period and all comments received from ninety (90) days in any twelve (12) month period.
(vii) furnish to each Holder named in any Shelf Registration Statement or Prospectus and underwriter, if any, in connection with such sale before filing with the SECCommission, with a view towards causing each copies of any Shelf Registration Statement or any amendment thereto Prospectus included therein or any amendments or supplements to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Shelf Registration Statement or any amendment thereto Prospectus (including all documents incorporated by reference after the initial filing of such Shelf Registration Statement), which documents will not be subject to review.
(d) The Company may require Purchaser to furnish to the review and comment of such Persons in connection with such sale, if any, for a period of at least five Business Days, and the Company will not file any other information regarding Purchaser and such Shelf Registration Statement or Prospectus or any amendment or supplement to any such Shelf Registration Statement or Prospectus (including all such documents incorporated by reference) to which such Persons shall reasonably object within five Business Days after the distribution receipt thereof, after which time any Person failing to object shall be deemed to have accepted the form of the documents received. Any Person making a timely objection shall be deemed to have reasonably objected to such securities filing if such objection is made because such Registration Statement, amendment, Prospectus or supplement, as the Company reasonably determinesapplicable, based on the advice of counsel, is required as proposed to be included in any Registration Statement.
(e) Purchaser agrees thatfiled, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits to state any material fact necessary to make the statements therein not misleading or fails to comply with the applicable requirements of the Act;
(viii) promptly prior to the filing of any document that is to be incorporated by reference into a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Shelf Registration Statement or Prospectus, provide copies of such document to the Holders, and underwriters, if any, in connection with such sale, make the Company's representatives available for a discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such Holders may reasonably request;
(ix) make available at reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing times for inspection by the Company that the use Holders and underwriters, if any, and any attorney or accountant retained by such Holders, or underwriters, if any, all financial and other records, pertinent corporate documents of the Prospectus may be resumed Company and is furnished cause the Company's officers, directors and employees to supply all information reasonably requested by any such Holder, underwriters, if any, attorney or accountant in connection with a supplemented such Shelf Registration Statement or amended Prospectus as contemplated by Section 8(a) hereofany post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness; provided, however, that such postponement Persons shall first agree in writing with the Company that any information that is reasonable and in good faith designated by the Company in writing as confidential at the time of sales delivery of Registrable Common Stock such information shall be kept confidential by Purchaser such Persons, unless (A) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (B) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of such Registration Statement or the use of any Prospectus), (C) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard such information by such Person or (D) such information becomes available to such Person from a source other than the Company and its subsidiaries and such source is not known, after due inquiry, by such Person to be bound by a confidentiality agreement; provided further, that the foregoing investigation shall not exceed ninety be coordinated on behalf of such Persons by one representative designated by and on behalf of such Persons and any such confidential information shall be available from such representative to such Persons so long as any Person agrees to be bound by such confidentiality agreement;
(90x) days if requested by any Holders or underwriters, if any, in the aggregate connection with such sale, promptly include in any 12 month period. If Shelf Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Holders or underwriters, if any, may reasonably request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the Registrable Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company shall give Purchaser is notified of the matters to be included in such Prospectus supplement or post-effective amendment;
(xi) furnish to each Holder and underwriter, if any, without charge, at least one copy of the Shelf Registration Statement, as first filed with the Commission, and of each amendment thereto, including all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference);
(xii) deliver to each Holder and underwriter, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any Suspension Noticeamendment or supplement thereto as such Persons reasonably may request; the Company hereby consents to the use (in accordance with law) of the Prospectus and any amendment or supplement thereto by each Holder and each underwriter, if any, in connection with the offering and the sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(xiii) upon the request of any Holder or underwriter, if any, enter into such agreements (including underwriting agreements) and make such representations and warranties and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Registrable Securities pursuant to any Shelf Registration Statement contemplated by this Agreement as may be reasonably requested by such Person in connection with any sale or resale pursuant to any applicable Shelf Registration Statement and in such connection, the Company shall extend shall:
(A) upon request of any Holder or underwriter, if any, furnish (or in the period case of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from paragraphs (2) and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices below, use its best efforts to cause to be furnished) to each Holder or notices underwriter, if any, upon the effectiveness of any Delay Period in any twelve (12)-month period.the Shelf Registration Statement:
(f1) The Company shall not permit any officera certificate, directordated such date, underwriter, broker or any other person acting signed on behalf of the Company by (x) the President or any Vice President and (y) a principal financial or accounting officer of the Company, confirming, as of the date thereof, the matters set forth in Sections 6(v), 9(a) and 9(b) of the Purchase Agreement and such other similar matters as the Holders may reasonably request;
(2) opinions, dated the date of effectiveness of the Shelf Registration Statement, of counsel for the Company covering matters similar to use those set forth in paragraphs (e) and (f) of Section 9 of the Purchase Agreement and such other matters as the selling Holders may reasonably request, and in any free writing prospectus event including a statement to the effect that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and have considered the matters required to be stated therein and the statements contained therein, although such counsel has not independently verified the accuracy, completeness or fairness of such statements; and that such counsel advises that, on the basis of the foregoing, no facts came to such counsel's attention that caused such counsel to believe that the Shelf Registration Statement, at the time such Shelf Registration Statement or any post-effective amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus contained in such Shelf Registration Statement as of its date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limiting the foregoing, such counsel may state further that such counsel assumes no responsibility for, and has not independently verified, the accuracy, completeness or fairness of the financial statements, notes and schedules and other financial data included in any Registration Statement contemplated by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as defined of the date of effectiveness of the Shelf Registration Statement from the Company's independent accountants, in Rule 405 under the Securities Act) customary form and covering matters of the type customarily covered in comfort letters to underwriters in connection with any registration statement covering Registrable Common Stockunderwritten offerings, without and affirming the prior written consent of Purchaser and any underwriter.matters set forth in the comfort lett
Appears in 1 contract
Sources: Registration Rights Agreement (Health Management Associates Inc)
Procedures. (a) In connection with The Corporation will, subject to the registration and sale of Registrable Common Stock pursuant to this Agreementlimitations provided herein, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and possible: use its reasonable best efforts to cause such Registration Statement to become effective and to remain continuously effective for a period that will terminate upon the earlier of (i) the date on which all Registrable Securities, covered by such Registration Statement, as soon as practicable amended from time to time, have been sold, and (ii) the date on which all Registrable Securities may be sold pursuant to Rule 144(k) (the "Registration Period"); prepare and file with the SEC the requisite registration statement to effect such registration, and thereafter, use reasonable efforts to cause such registration statement to become effective; and provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (thereto, including any prospectus supplement for a shelf takedown)documents incorporated by reference, the Corporation will furnish to Purchaser counsel to the Holders of the Registrable Securities covered by such registration statement and the managing underwriter or underwriters, if any, draft copies of all such documents proposed to be filedfiled (other than exhibits, including unless so requested) a reasonable time prior thereto, which documents incorporated by reference in will be subject to the Prospectus and, if requested by Purchaser, the exhibits incorporated by referencereasonable review of such counsel and such Holders and underwriters, and Purchaser (will notify each Holder of the Registrable Securities of any stop order issued by the SEC in connection therewith and the underwriter(s), if any) shall have the opportunity take all reasonable actions required to review and comment thereon, and the Company will make remove such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) stop order; prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement andregistration statement; provided however that the Corporation may, at any time, delay the filing or suspend the effectiveness of any registration under this Agreement, or without suspending such effectiveness, instruct the Purchaser not to sell any Registrable Securities included in any such registration, (i) if the case Corporation shall have determined upon the advice of counsel that the Shelf Registration StatementCorporation would be required to disclose any actions taken or proposed to be taken by the Corporation in good faith and for valid business reasons, prepare including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Corporation or on such actions, or (ii) if required by law, to update the prospectus supplements containing relating to any such disclosures as may be reasonably requested registration to include updated financial statements (a "Suspension Period") by providing the Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies written notice of such Registration Statement, each amendment Suspension Period and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, reasons therefore; provided, however, that the Company Corporation will not be required to disclose such reasons with particularity if an authorized executive officer of the Corporation certifies that the Corporation believes it is required by law to delay the filing or suspend the effectiveness of any such registration. In addition, the Corporation shall have no not be required to keep any registration effective, or may without suspending such obligation effectiveness, instruct the Purchaser if it has Registrable Securities included in such registration not to sell such securities, during any period which the Corporation is instructed, directed, ordered or otherwise requested by any governmental agency or self-regulatory organization to stop or suspend such trading or sales ("Supplemental Extension Period"). In the event of a Suspension Period or Supplemental Extension Period, the period during which any registration under this Agreement is to remain effective pursuant to this Section 3.1(b) shall be tolled until the end of any such Suspension Period or Supplemental Extension Period. The Corporation will restrict any Suspension Period or Supplemental Extension Period to less than 30 days; furnish to the Purchaser such number of conformed copies of a final such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus if the conditions of contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 172(c) 424 under the Securities Act are satisfied by Act, and such other documents, as the Company;
(iv) Purchaser may reasonably request; use its reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic as each seller thereof shall reasonably request and to keep such registration or foreign) qualification in effect for so long as Purchaser such registration statement remains in effect, and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such seller, except that the Company will Corporation shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 3.1(d) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction);
(v) . use its reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Purchaser to consummate the disposition of such Registrable Securities; notify Purchaser and any underwriter(s)in writing the Purchaser, if Registrable Securities are covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, and at the request of the Purchaser or any underwriter(s), prepare and furnish to the Company shall prepare Purchaser a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requestedsecurities, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of such prospectus shall not include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty light of the circumstances under which they were made. otherwise use reasonable efforts to comply with respect to information relating to Purchaser furnished to all applicable rules and regulations of the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall SEC and make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following the resolution or clearance of all SEC comments orreasonably practicable, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue earnings statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend covering the period of time during which at least twelve months beginning with the Company is required to maintain first full calendar month after the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of such registration statement, which earnings statement shall satisfy the giving provisions of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use Section 11(a) of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any ; provide and cause to be maintained a transfer agent for all Registrable Securities covered by such registration statement covering from and after a date not later than the effective date of such registration statement; and use its reasonable efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Corporation's Common Stock, without the prior written consent of Purchaser and any underwriterStock is then listed.
Appears in 1 contract
Sources: Warrant Purchase Agreement (Platinum Research Organization, Inc.)
Procedures. (a) In connection with the registration and sale of Whenever one or more Stockholders request that any Registrable Common Stock Securities be registered or sold pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously promptly as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock Securities and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the Stockholders participating in such Registration Statements and the underwriter or underwritersunderwriter(s), if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchasersuch Stockholders, the exhibits incorporated by reference, provided, that any such item which is available on the SEC’s E▇▇▇▇ system (or successor thereto) need not be furnished, and Purchaser such Stockholders (and the underwriter(s), if any) shall have the opportunity to review and comment thereonthereon (other than such documents incorporated by reference in the Prospectus), and the Company will make not file such changes and additions Registration Statement or Prospectus or any amendment or supplement thereto as reasonably requested by Purchaser in a form to which the Stockholders (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoreasonably objects;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen one hundred and eighty (18180) months, in the case of a Shelf Registration Statement days (plus, in each case, plus the duration of any Delay Period and any Blackout Period), in the case of a Demand Registration Statement or a period of three years, in the case of a Shelf Registration Statement, or in each case such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser such Stockholders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser such Stockholders or any underwriter(s) in connection with each shelf takedown; provided that the Company shall not have any obligation to include such requested disclosure if the Company reasonably expects that doing so would cause the applicable Prospectus to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) furnish to Purchaser such Stockholders such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser such Stockholders and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser such Stockholders and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser such Stockholders and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock Securities (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser such Stockholders and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser such Stockholders or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (iA) enter into such customary agreements (including underwriting agreements in customary form), (iiB) take all such other actions as Purchaser such Stockholders or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock Securities (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser such Stockholders and the underwriter(s) in connection with performing due diligence) and (iiiC) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchasersuch Stockholders;
(vii) in connection with each Demand Registration requested by the Demand Stockholders pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under the Stockholders pursuant to Section 2, cause there to occur provide Full Cooperation and, in all other cases, cause members of senior management of the Company to be reasonably available to participate in, and to reasonably cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers); provided that such activities shall not unreasonably interfere with the duties of such senior management in the ordinary course of the Company’s business;
(viii) make available for inspection by Purchasersuch Stockholders, any underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser such Stockholders or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directorsmanagers, employees and independent accountants to supply all information reasonably requested by Purchasersuch Stockholders, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Securities not later than the effective date of such Registration Statement;
(xix) if requestedrequested by underwriter(s) in connection with an underwritten offering, cause to be delivered, immediately prior to the pricing of any such underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, offering and at the time of closing of the sale of Registrable Common Stock Securities pursuant thereto)to such underwritten offering, letters from the Company’s independent registered public accountants and any other accountants whose reports are included or incorporated by reference in such Registration Statement addressed to Purchaser such Stockholders and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xiixi) make generally available to Purchaser and its Affiliates securityholders a consolidated earnings statement (which need not be audited) for the 12 twelve (12) months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning earnings statement under Section 11(a) of the Securities Act; and
(xiiixii) promptly notify Purchaser such Stockholders and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerProspectus;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Securities for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser a Stockholder furnished to the Company by or on behalf of Purchaser such Stockholder specifically for use therein).
(c) The Company shall make available to Purchaser the Stockholders (and the underwriters, if any) (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such a Shelf Registration Statement or to any of the documents incorporated by reference thereina Demand Registration Statement, and (ii) such number of copies of each a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser any Stockholder or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities. The Company will promptly notify Purchaser the Stockholders of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplementamendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, request as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Stockholders to furnish to the Company any other information regarding Purchaser such Stockholders and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement. Additionally, each Stockholder agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder. Each Stockholder agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it or an exemption therefrom in connection with sales of Registrable Securities pursuant to a Registration Statement.
(e) Purchaser Each Stockholder agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser such Stockholder will forthwith discontinue disposition of Registrable Common Stock Securities pursuant to such Registration Statement for a reasonable length of time not to exceed 10 ten (10) days (45 thirty (30) days in the case of an event described in Section 2(d) or Section 3(d)) until Purchaser such Stockholder is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a7(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock Securities by Purchaser such Stockholder shall not exceed ninety thirty (9030) days in the aggregate in any 12 six-month period. If the Company shall give Purchaser the Stockholders any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements Statement effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Stockholders either is are advised by the Company that the use of the Prospectus may be resumed or receives the receive copies of the supplemented or amended Prospectus contemplated by Section 8(a7(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of two (2) Suspension Notices in any twelve (12) month period. If the Blackout Period exceeds the periods permitted by this Section 7(e), the Company will make pro rata payments to each Stockholder, as liquidated damages and not as a penalty, in an amount equal to 1.5% of the aggregate purchase price initially paid for such Registrable Securities pursuant to the Securities Purchase Agreement, for each 30-day period or pro rata for any portion thereof during which the Blackout Period exceeds the periods permitted by this Section 7(e). Such payments shall not be an exclusive remedy for such events and shall not affect the right of the Stockholders to seek injunctive relief under this Agreement. Such payments shall be made to each Stockholder in cash no later than three (3) Suspension Notices or notices Business Days after the end of any Delay Period in any twelve (12)-month each 30-day period.
(f) The Company shall not permit any officer, directormanager, underwriter, broker or any other person acting on behalf of the Company to use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with any registration statement Registration Statement covering Registrable Common StockSecurities, without the prior written consent of Purchaser the Stockholders and any underwriter.
(g) In no event shall the Company be required to effect more than one underwritten offering hereunder within any six-month period, whether as a Fully Marketed Underwritten Offering pursuant to the Shelf Registration Statement or, in the event the Company is not eligible for registration under the Shelf Registration Statement, as an underwritten offering pursuant to a Demand Registration.
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock Securities pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the Holders’ intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock Securities and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the Holders and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthe Holders, the exhibits incorporated by reference, and Purchaser the Holders (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser the Holders (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement 180 days (plus, in each case, the duration of any Delay Period and any Blackout Period), in the case of a Demand Registration Statement or for as long as any Holder owns any Registrable Securities, in the case of a Shelf Registration Statement, or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Holders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Holders or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser the Holders such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser the Holders and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser the Holders and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser the Holders and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock Securities (provided, that the Company will not be required to (1A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2B) subject itself to taxation in any such jurisdiction or (3C) consent to general service of process in any such jurisdiction);
(v) notify Purchaser the Holders and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the Holders or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (iA) enter into such customary agreements (including underwriting agreements in customary form), (iiB) take all such other actions as Purchaser the Holders or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock Securities (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser the Holders and the underwriter(s) in connection with performing due diligence) and (iiiC) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserthe Holders;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 23, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaserthe Holders, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser the Holders or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserthe Holders, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock Securities to be listed on NASDAQ, or any each securities exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on the NYSE or a national securities exchange selected by the Company and agreed to by PurchaserCompany;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Securities not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock Securities pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser the Holders and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates Holders a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning earnings statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser the Holders and the underwriter or underwriters, if any:
(1A) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2B) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Securities for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser the Holders furnished to the Company by or on behalf of Purchaser the Holders specifically for use therein).
(c) The Company shall make available to Purchaser the Holders (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Holders or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities. The Company will promptly notify Purchaser the Holders of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Holders to furnish to the Company any other information regarding Purchaser the Holders and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees The Holders agree that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser the Holders will forthwith discontinue disposition of Registrable Common Stock Securities pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 30 days in the case of an event described in Section 3(d)) until Purchaser the Holders is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof7(a); provided, however, that such postponement of sales of Registrable Common Stock Securities by Purchaser the Holders shall not exceed ninety forty-five (9045) days in the aggregate in any 12 12-month period. If the Company shall give Purchaser the Holders any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Holders either is are advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a7(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month 12-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common StockSecurities, without the prior written consent of Purchaser the Holders and any underwriter.
Appears in 1 contract
Sources: Purchase and Contribution Agreement (Skilled Healthcare Group, Inc.)
Procedures. (a) In connection with the registration and sale of Whenever one or more Stockholders request that any Registrable Common Stock Securities be registered or sold pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously promptly as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock Securities and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the Stockholders participating in such Registration Statements and the underwriter or underwritersunderwriter(s), if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchasersuch Stockholders, the exhibits incorporated by reference, provided, that any such item which is available on the SEC’s ▇▇▇▇▇ system (or successor thereto) need not be furnished, and Purchaser such Stockholders (and the underwriter(s), if any) shall have the opportunity to review and comment thereonthereon (other than such documents incorporated by reference in the Prospectus), and the Company will make not file such changes and additions Registration Statement or Prospectus or any amendment or supplement thereto as reasonably requested by Purchaser in a form to which the Stockholders (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoreasonably objects;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 one hundred and eighty (180) days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or in each case such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser such Stockholders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser such Stockholders or any underwriter(s) in connection with each shelf takedown; provided that the Company shall not have any obligation to include such requested disclosure if the Company reasonably expects that doing so would cause the applicable Prospectus to contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) furnish to Purchaser such Stockholders such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser such Stockholders and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser such Stockholders and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser such Stockholders and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock Securities (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser such Stockholders and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser such Stockholders or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser such Stockholders or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock Securities (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser such Stockholders and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchasersuch Stockholders;
(vii) in connection with each Demand Registration requested by the Demand Stockholders pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under the Stockholders pursuant to Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be reasonably available to participate in, and to reasonably cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers); provided that such activities shall not unreasonably interfere with the duties of such senior management in the ordinary course of the Company’s business;
(viii) make available for inspection by Purchasersuch Stockholders, any underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser such Stockholders or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directorsmanagers, employees and independent accountants to supply all information reasonably requested by Purchasersuch Stockholders, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Securities not later than the effective date of such Registration Statement;
(xix) if requestedrequested by underwriter(s) in connection with an underwritten offering, cause to be delivered, immediately prior to the pricing of any such underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, offering and at the time of closing of the sale of Registrable Common Stock Securities pursuant thereto)to such underwritten offering, letters from the Company’s independent registered public accountants and any other accountants whose reports are included or incorporated by reference in such Registration Statement addressed to Purchaser such Stockholders and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xiixi) make generally available to Purchaser and its Affiliates securityholders a consolidated earnings statement (which need not be audited) for the 12 twelve (12) months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning earnings statement under Section 11(a) of the Securities Act; and
(xiiixii) promptly notify Purchaser such Stockholders and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerProspectus;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Securities for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser a Stockholder furnished to the Company by or on behalf of Purchaser such Stockholder specifically for use therein).
(c) The Company shall make available to Purchaser the Stockholders (and the underwriters, if any) (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such a Shelf Registration Statement or to any of the documents incorporated by reference thereina Demand Registration Statement, and (ii) such number of copies of each a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser any Stockholder or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities. The Company will promptly notify Purchaser the Stockholders of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplementamendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, request as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Stockholders to furnish to the Company any other information regarding Purchaser such Stockholders and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement. Additionally, each Stockholder agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder. Each Stockholder agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it or an exemption therefrom in connection with sales of Registrable Securities pursuant to a Registration Statement.
(e) Purchaser Each Stockholder agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser such Stockholder will forthwith discontinue disposition of Registrable Common Stock Securities pursuant to such Registration Statement for a reasonable length of time not to exceed 10 ten (10) days (45 thirty (30) days in the case of an event described in Section 3(d)) until Purchaser such Stockholder is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock Securities by Purchaser such Stockholder shall not exceed ninety forty-five (9045) days in the aggregate in any 12 six-month period. If the Company shall give Purchaser the Stockholders any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Stockholders either is are advised by the Company that the use of the Prospectus may be resumed or receives the receive copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month 12) month period.
(f) The Company shall not permit any officer, directormanager, underwriter, broker or any other person acting on behalf of the Company to use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common StockSecurities, without the prior written consent of Purchaser the Stockholders and any underwriter.
(g) In no event shall the Company be required to effect more than one underwritten offering hereunder within any six-month period, whether as a Fully Marketed Underwritten Offering pursuant to the Shelf Registration Statement or, in the event the Company is not eligible for registration under the Shelf Registration Statement, as an underwritten offering pursuant to a Demand Registration.
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this AgreementShelf Registration Statement, the Company shall shall:
(i) use its reasonable best efforts to effect the such registration and to permit the sale of such Registrable Common Stock the Transfer Restricted Securities being sold in accordance with Purchaser’s the intended method or methods of disposition thereofdistribution thereof (as indicated in the information furnished to the Company pursuant to Section 3(b) hereof), and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) will prepare and file with the SEC Commission a Shelf Registration Statement relating to the registration on any appropriate form under the Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with respect the intended method or methods of distribution thereof (including, without limitation, one or more underwritten offerings) within the time periods and otherwise in accordance with the provisions hereof. The Company shall not be permitted to such Registrable Common Stock and use its reasonable best efforts to cause such include in the Shelf Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and securities other than the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoTransfer Restricted Securities;
(ii) prepare use its best efforts to contact all Holders of Transfer Restricted Securities and file with the SEC such amendments and supplements notify each Holder of its right to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the include its Transfer Restricted Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify keep such Registrable Common Stock under such other securities or blue sky laws Shelf Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of Agreement. Upon the occurrence of any event as a result of which that would cause any such Shelf Registration Statement or the Prospectus contains an untrue statement of a material fact or omits any material fact necessary contained therein (i) to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), misleading or (ii) take all not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company shall file promptly (A) an appropriate amendment to such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of Shelf Registration Statement curing such Registrable Common Stock (includingdefect, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other casesif Commission review is required, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock amendment to be listed on NASDAQdeclared effective as soon as practicable, (B) a supplement pursuant to Rule 424 under the Act curing such defect or any exchange on which securities of the same class issued (C) an Exchange Act report incorporated by the Company are then listed or, if no reference curing such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaserdefect;
(xiv) provide prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period set forth in Section 3 hereof, cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the Act in a transfer agent timely manner; and registrar for comply with the provisions of the Act with respect to the disposition of all Transfer Restricted Securities covered by such Registrable Common Stock not later than Shelf Registration Statement during the effective date applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Shelf Registration StatementStatement or supplement to the Prospectus;
(xiv) if requested, cause to be delivered, immediately prior to advise the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser Holders and each underwriterunderwriters, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; promptly and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
requested by such Persons, confirm such advice in writing, (1A) when the Shelf Registration Statement, any pre-effective amendment, the Prospectus Statement or any Prospectus supplement or post-post- effective amendment to the Registration Statement has been filed filed, and, with respect to the Shelf Registration Statement or any post-post- effective amendmentamendment thereto, when the same has become effective;
, (2B) of any written request by the SEC Commission for amendments to the Shelf Registration Statement or amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC for additional information relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
thereto, (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Shelf Registration Statement; and
(4) Statement under the Act or of the receipt suspension by the Company of any notification with respect to the suspension state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any Registrable Common Stock jurisdiction, or the initiation of any proceeding for sale any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Shelf Registration Statement in order to make the statements therein not misleading, or that requires the making of any additions to or changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time the applicable Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or blue sky laws Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of any jurisdiction.such order at the earliest possible time;
(bvi) The Company represents and warrants that no subject to Section 5(a)(iii), if any fact or event contemplated by Section 5(a)(v)(D) above shall exist or have occurred, prepare a post-effective amendment or supplement to the Shelf Registration Statement (including or related Prospectus or any amendments document incorporated therein by reference or supplements thereto and Prospectuses contained therein) shall file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain any an untrue statement of a material fact or omit to state a any material fact required to be stated therein, or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).misleading;
(cvii) The Company shall make available upon the request of counsel for the Holders and underwriters, if any, furnish to Purchaser (i) promptly after the same is prepared and publicly distributed, filed such counsel before filing with the SECCommission, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Shelf Registration Statement or any post-effective amendment Prospectus included therein or the filing of any supplement amendments or amendment supplements to any such Shelf Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of any Prospectus supplement. The such Shelf Registration Statement), which documents will be subject to the review and comment of such counsel in connection with such sale, if any, for a period of at least five Business Days, and the Company will promptly respond to not file any and all comments received from the SEC, with a view towards causing each such Shelf Registration Statement or Prospectus or any amendment thereto or supplement to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Shelf Registration Statement or any amendment thereto will not Prospectus (including all such documents incorporated by reference) to which such Persons shall reasonably object within five Business Days after the receipt thereof. Any such Person shall be subject deemed to review.
(d) The Company may require Purchaser have reasonably objected to furnish to the Company any other information regarding Purchaser and the distribution of such securities filing if such Registration Statement, amendment, Prospectus or supplement, as the Company reasonably determinesapplicable, based on the advice of counsel, is required as proposed to be included in any Registration Statement.
(e) Purchaser agrees thatfiled, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits to state any material fact necessary to make the statements therein not misleading or fails to comply with the applicable requirements of the Act;
(viii) upon the request of any Holder or underwriter, if any, provide copies of any document filed with the Commission that is incorporated by reference into the Shelf Registration Statement or Prospectus to such Holder or underwriter, and make the Company's representatives available for discussion of such document and other customary due diligence matters;
(ix) make available at reasonable times for inspection by the Holders and underwriters, if any, and any attorney or accountant retained by such Holders or underwriters, if any, all financial and other records, pertinent corporate documents of the Company and cause the Company's officers and employees to supply all information reasonably requested by any such Holder, underwriters, attorney or accountant in connection with the Shelf Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness;
(x) if requested by any Holder or underwriter, if any, promptly include in the Shelf Registration Statement or Prospectus, pursuant to a “Suspension Notice”)supplement or post-effective amendment, Purchaser will forthwith discontinue if necessary, such information as such Holder or underwriter may reasonably request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the Transfer Restricted Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be included in such Prospectus supplement or post-effective amendment;
(xi) upon the request of any Holder or underwriter, if any, furnish such Holder or underwriter, if any, without charge, at least one copy of the Shelf Registration Statement, as first filed with the Commission, and of each amendment thereto;
(xii) deliver to each Holder and underwriter, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Holder or underwriter reasonably may request; the Company hereby consents to the use (in accordance with law) of the Prospectus and any amendment or supplement thereto by each Holder and each underwriter, if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto;
(xiii) upon the request of any Holder or underwriter, if any, enter into such agreements (including underwriting agreements) and make such representations and warranties and take all such other actions in connection therewith in order to expedite or facilitate the disposition of Registrable Common Stock the Transfer Restricted Securities pursuant to such the Shelf Registration Statement for a reasonable length as may be reasonably requested by such Holder or underwriter in connection with any sale or resale pursuant to the Shelf Registration Statement and in such connection, the Company shall:
(A) upon request of time not to exceed 10 days any such Holder or underwriter furnish (45 days or in the case of paragraphs (2) and (3) below, use its best efforts to cause to be furnished) to each Holder or underwriter upon the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such date, signed on behalf of the Company by the Chairman of the Board or President and Financial Officer of the Company, confirming, as of the date thereof, the matters set forth in Sections 6(v), 9(a) and 9(b) of the Purchase Agreement and such other similar matters as such Person may reasonably request;
(2) an opinion, dated the date of effectiveness of the Shelf Registration Statement, of counsel for the Company covering matters similar to those set forth in paragraph (e) of Section 9 of the Purchase Agreement and such other matter as such Holder or underwriter may reasonably request, and in any event described including a statement to the effect that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and has considered the matters required to be stated therein and the statements contained therein, although such counsel has not independently verified the accuracy, completeness or fairness of such statements; and that such counsel advises that, on the basis of the foregoing (relying as to materiality to the extent such counsel deems appropriate upon the statements of officers and other representatives of the Company and without independent check or verification), no facts came to such counsel's attention that caused such counsel to believe that the Shelf Registration Statement and any post-effective amendment thereto, at the time such Shelf Registration Statement or any post-effective amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or that the Prospectus contained in such Shelf Registration Statement, as of its date, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limiting the foregoing, such counsel may state further that such counsel assumes no responsibility for, and has not independently verified the accuracy, completeness or fairness of the financial statements, notes and schedules and other financial data included in the Shelf Registration Statement or the related Prospectus; and
(3) a customary comfort letter, dated as of the date of effectiveness of the Shelf Registration Statement from the Company's independent accountants, in the customary form and covering matters of the type customarily covered in comfort letters to underwriters in connection with underwritten offerings, and affirming the matters set forth in the comfort letters delivered pursuant to Section 3(d)9(i) until Purchaser is advised of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be reasonably requested by such Holder or underwriter to evidence compliance with the matters set forth in writing clause (A) above and with any customary conditions contained in any agreement entered into by the Company that pursuant to this clause (xiii);
(xiv) prior to any public offering of Transfer Restricted Securities, cooperate with the use Holders, underwriters, if any, and their respective counsel in connection with the registration and qualification of the Prospectus Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions as such Persons may be resumed request and is furnished with a supplemented do any and all other acts or amended Prospectus as contemplated things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by Section 8(a) hereofthe Shelf Registration Statement; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled required to deliver more register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than a total of three (3) Suspension Notices or notices of any Delay Period as to matters and transactions relating to the Shelf Registration Statement, in any twelve (12)-month period.jurisdiction where it is not now so subject;
(f) 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 (as defined in Rule 405 under the Securities Actxv) in connection with any registration sale of Transfer Restricted Securities that will result in such securities no longer being Transfer Restricted Securities, cooperate with the Holders to facilitate the timely preparation and delivery of certificates (including global certificates registered in the name of Cede & Co. as nominee for The Depository Trust Company) representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and, in the case of certificated Transfer Restricted Securities, to register such Transfer Restricted Securities in such denominations and such names as the Holders may request at least two Business Days prior to such sale of Transfer Restricted Securities;
(xvi) list all shares of Common Stock covered by the Shelf Registration Statement on any securities exchange on which the Common Stock is then listed;
(xvii) use its best efforts to cause the disposition of the Transfer Restricted Securities covered by the Shelf Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be required to enable the seller or sellers thereof to consummate the disposition of such Transfer Restricted Securities, subject to the provision contained in clause (xiv) above;
(xviii) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders with regard to the Shelf Registration Statement, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) covering Registrable Common Stocka twelve-month period beginning after the effective date of the Shelf Registration Statement (as such term is defined in paragraph (c) of Rule 158 under the Act);
(xix) if underwritten, without make appropriate officers of the prior written consent Company available to the underwriters for meetings with prospective purchasers of Purchaser the Transfer Restricted Securities and any underwriter.prepare and present to potential investors customary "road show" material in a manner consistent with other new issuances of other securities similar to the Transfer Restricted Securities; and
Appears in 1 contract
Sources: Registration Rights Agreement (Chesapeake Energy Corp)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock the Acquisition Shares pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock the Acquisition Shares in accordance with Purchaser’s Holder's intended methods method of disposition thereofthereof and, and pursuant thereto in connection therewith, the Company shall as expeditiously as reasonably practicable:
(i1) prepare and file with the SEC a the Shelf Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such the Shelf Registration Statement to become and remain effective as soon as practicable thereafter; in accordance with Section 2.01(a) and (b) above;
(2) prepare and file with the SEC amendments and supplements to the Shelf Registration Statement and the prospectuses used in connection therewith in accordance with Section 2.01(c) above;
(3) before filing a with the SEC the Shelf Registration Statement or Prospectus prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, the Company shall furnish to Purchaser one counsel selected by Holder and one counsel for the underwriter or underwriterssales or placement agent, if any, copies in connection therewith, drafts of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, filed and Purchaser (and the underwriter(s), if any) shall have the provide such counsel with a reasonable opportunity to for review thereof and comment thereon, such review to be conducted and such comments to be delivered with reasonable promptness;
(4) promptly (i) notify Holder of each of (x) the Company will make filing and effectiveness of the Shelf Registration Statement and each prospectus and any amendments or supplements thereto, (y) the receipt of any comments from the SEC or any state securities law authorities or any other governmental authorities with respect to any such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Shelf Registration Statement or amendment thereto prospectus or any Prospectus amendments or supplements thereto, and (z) any oral or written stop order with respect to such registration, any suspension of the registration or qualification of the sale of the Acquisition Shares in any jurisdiction or any supplement initiation or threatening of any proceedings with respect to any of the foregoing and (ii) use reasonable best efforts to obtain the withdrawal of any order suspending the registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any related prospectus in any jurisdiction with respect thereto;
(ii5) prepare furnish to Holder, the underwriters or the sales or placement agent, if any, and file with one counsel for each of the SEC such amendments and supplements to such foregoing, a conformed copy of the Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen each amendment and supplement thereto (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period including all exhibits thereto) and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such additional number of copies of such Shelf Registration Statement, each amendment and supplement theretothereto (in such case, each Prospectus without such exhibits), the prospectus (including each preliminary Prospectus prospectus) included in such Shelf Registration Statement and Prospectus supplement) prospectus supplements and all exhibits thereto and such other documents as Purchaser and any underwriter(s) Holder, underwriter, agent or such counsel may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Acquisition Shares by the CompanyHolder;
(iv6) if requested by Holder or the managing underwriter or underwriters of a Rule 415 Offering, subject to approval of counsel to the Company in its reasonable judgment, promptly incorporate in a prospectus, supplement or post-effective amendment to the Shelf Registration Statement such information concerning underwriters and the plan of distribution of the Acquisition Shares as such managing underwriter or underwriters or Holder reasonably shall furnish to the Company in writing and request be included therein, including, without limitation, information with respect to the number of Acquisition Shares being sold by Holder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any other terms of the underwritten offering of the Acquisition Shares to be sold in such offering; and make all required filings of such prospectus, supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such prospectus, supplement or post-effective amendment;
(7) use its reasonable best efforts to register or qualify such Registrable Common Stock the Acquisition Shares under such other securities or "blue sky sky" laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) Holder reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) Holder to consummate the disposition in such jurisdictions of in which the Registrable Common Stock Acquisition Shares are to be sold and keep such registration or qualification in effect for so long as the Shelf Registration Statement remains effective under the Securities Act (provided, provided that the Company will shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)paragraph, (2ii) subject itself to taxation in any such jurisdiction where it would not otherwise be subject to taxation but for this paragraph or (3iii) consent to the general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject to general service of process but for this paragraph);
(v) 8) notify Purchaser and any underwriter(s)Holder, at any time when a Prospectus prospectus relating thereto to the Shelf Registration Statement is required to be delivered under the Securities Act, upon the discovery that, or of the occurrence happening of any event as a result of which any Prospectus which, the Shelf Registration Statement, as then in effect, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading, and, at subject to Section 2.03 above, promptly prepare and furnish to the request of Purchaser or any underwriter(s), the Company shall prepare Holder a supplement or amendment to the prospectus contained in the Shelf Registration Statement so that the Shelf Registration Statement shall not, and such Prospectus so that, prospectus as thereafter supplemented and/or amendeddelivered to the purchasers of such Acquisition Shares shall not, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading;
(vi9) cause all of the Acquisition Shares to be listed on each national securities exchange and included in each established over-the-counter market on which or through which the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaseris then listed or traded;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii10) make available for inspection by PurchaserHolder, any underwriter participating in any disposition pursuant to a the Shelf Registration Statement, and any attorney, accountant or other agent retained by Purchaser Holder or underwriter, all pertinent reasonably requested financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors, employees employees, attorneys and independent accountants to supply all information reasonably requested by PurchaserHolder, any underwriterunderwriters, any attorneyattorneys, any accountant accountants or any agent agents in connection with such the Shelf Registration Statement; information which the Company determines, in good faith, to be confidential shall not be disclosed by such persons unless, subject to Section 2.03 above, (i) the disclosure of such information is required by applicable federal securities laws or is necessary to avoid or correct a misstatement or omission in such Shelf Registration Statement or (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; Holder agrees, on its own behalf and on behalf of all of its underwriters, accountants, attorneys and agents, that the information obtained by any of them as a result of such inspections shall be deemed confidential unless and until such is made generally available to the public; Holder further agrees, on its own behalf and on behalf of all of its underwriters, accountants, attorneys and agents, 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 its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential; nothing contained herein shall require the Company to waive any attorney-client privilege or disclose attorney work product;
(ix11) use its reasonable best efforts to cause comply with all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior applicable laws related to the pricing of any underwritten offering, immediately prior to effectiveness of each Shelf Registration Statement (and, in the case of an underwritten offering, at the time of closing of the and offering and sale of Registrable Common Stock pursuant thereto)securities and all applicable rules and regulations of governmental authorities in connection therewith (including, letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriterwithout limitation, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable Exchange Act, and the rules and regulations adopted promulgated by the SEC thereunder, Commission) and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement security holders as soon as reasonably practicable (but in any event not later than fifteen (15) months after the end effectiveness of such period, which the Shelf Registration Statement) an earnings statement shall satisfy of the requirements of an earning statement under Company and the Company Subsidiaries complying with Section 11(a) of the Securities Act;
(12) use reasonable best efforts to furnish to Holder a signed counterpart of (x) an opinion of counsel for the Company and (y) a "comfort" letter signed by the independent public accountants who have certified the Company's financial statements included or incorporated by reference in such registration statement, covering such matters with respect to such registration statement and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities for the account of, or on behalf of, a holder of common stock, such opinion and comfort letters to be dated the date that such opinion and comfort letters are customarily dated in such transactions; and
(xiii13) promptly notify Purchaser and take other actions as Holder or the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to expedite or facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewAcquisition Shares.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall is required to use its reasonable best efforts in good faith to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 2.1 and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof2.2, and pursuant thereto the Company shall will as expeditiously promptly as reasonably practicablepracticable under the circumstances:
(ia) prepare and file with the SEC a Registration Statement with respect Commission the requisite registration statement to effect such Registrable Common Stock registration and thereafter use its reasonable best efforts in good faith to cause such Registration Statement registration statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or effective, provided that the Company may discontinue any amendments or supplements thereto registration of securities which are not Registrable Securities (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserunder the circumstances specified in Section 2.2.1, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if anysecurities which are Registrable Securities) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) at any time prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement the effective date of the registration statement relating thereto;
(iib) prepare and file with the SEC 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 a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement for 60 days or such period earlier time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser thereof the Holders set forth in such Registration Statement andregistration statement, in the case subject to any Suspension Period or Supplemental Suspension Period which will suspend any remaining portion of the Shelf Registration Statement, prepare such prospectus supplements containing 60-day period until termination of such disclosures as may be reasonably requested by Purchaser Suspension Period or any underwriter(s) in connection with each shelf takedownSupplemental Suspension Period;
(iiic) promptly furnish to Purchaser the Holders such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such Registration Statement, each amendment and supplement thereto, each Prospectus registration statement (including each preliminary Prospectus prospectus and Prospectus supplementany summary prospectus) and any other prospectus filed in accordance with Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as Purchaser and any underwriter(s) the Holders may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Companyrequest;
(ivd) use its reasonable best efforts in good faith to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company Holders shall reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.request,
Appears in 1 contract
Procedures. (a) In connection Whenever the Stockholders have requested that any Registrable Securities be registered in accordance with the registration and sale of Registrable Common Stock pursuant to this AgreementArticle II or III, the Company shall will use its all reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the intended methods method of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible will (or, in the case of clause (p) below, will not):
(a) prepare and file with the Commission a registration statement with respect to such Qualifying Offering or such Registrable Securities, as the case may be (such registration statement to include in each case all information which the holders of the Registrable Securities to be registered thereby, if any, shall reasonably practicable:request) and use all reasonable efforts to cause such registration statement to become effective, provided that as promptly as practicable before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will (i) furnish copies of all such documents proposed to be filed to one counsel selected by the Required 399 Stockholders, and the Company shall not file any such documents to which any such relevant counsel shall have reasonably objected on the grounds that such document does not comply in all material respects with the requirements of the Securities Act, and (ii) notify each 399 Stockholder, in the case of a Qualifying Offering requested pursuant Section 2.1(a), and each holder of Registrable Securities covered by such registration statement, in all other cases, of (x) any request by the Commission to amend such registration statement or amend or supplement any prospectus, or (y) any stop order issued or threatened by the Commission, and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC 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 a at all times during the period commencing on the effective date of not less than 90 dayssuch registration statement and ending on the first date as of which all Registrable Securities (and all shares of Common Stock to be sold by the Company, in the case of a Demand Registration Statement or an aggregate of eighteen (18Qualifying Offering requested pursuant to Section 2.1(a)) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement registration statement are sold in accordance with the intended plan of distribution set forth in such registration statement and (ii) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during such period in accordance with the intended methods of disposition by Purchaser the sellers thereof set forth in such Registration Statement registration statement;
(c) furnish, without charge, (i) in the case of a Qualifying Offering requested pursuant to Section 2.1(a), to each 399 Stockholder, five conformed copies of such registration statement, each amendment and supplement thereto and the prospectus included in such registration statement (including each preliminary prospectus and, in the case of the Shelf Registration Statementtwo of such copies, prepare such prospectus supplements containing such disclosures as may be reasonably requested including all exhibits thereto and documents incorporated by Purchaser or any underwriter(sreference therein), and (ii) in connection with all other cases, to each shelf takedown;
(iii) furnish to Purchaser seller of Registrable Securities covered by such registration statement, such number of conformed copies of such Registration Statementregistration statement, each amendment and supplement thereto, each Prospectus the prospectus included in such registration statement (including each preliminary Prospectus prospectus and, in each case, including all exhibits thereto and Prospectus supplementdocuments incorporated by reference therein) and such other documents as Purchaser and any underwriter(s) such seller may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no Securities owned by such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Companyseller;
(ivd) use its reasonable best efforts to register or qualify the Registrable Securities, if any, covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic as any seller thereof shall reasonably request, to keep such registration or foreign) qualification in effect for so long as Purchaser such registration statement remains in effect and any underwriter(s) reasonably requests and to do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the any such Registrable Common Stock (Securities owned by such seller; provided, however, that the Company will not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph clause (ivd), (2ii) subject itself to taxation in any such jurisdiction or (3iii) consent to general service of process in any such jurisdiction);
(ve) furnish to each seller of the Registrable Securities, if any, covered by such registration statement a signed copy, addressed to such seller (and the underwriters, if any) of an opinion of counsel for the Company or special counsel to the selling stockholders, dated the effective date of such registration statement (and, if such registration statement includes an underwritten public offering, dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such seller, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) as are customarily covered in opinions of issuer's counsel delivered to the underwriters in underwritten public offerings, and such other legal matters as the seller (or the underwriters, if any) may reasonably request;
(f) notify Purchaser each 399 Stockholder (in the case of a Qualifying Offering requested pursuant to Section 2.1(a)) and any underwriter(seach seller of Registrable Securities covered by such registration statement (in all other cases), at any a time when a Prospectus prospectus relating thereto to such Qualifying Offering or Registrable Securities (as the case may be) is required to be delivered under the Securities Act, of the occurrence of any event known to the Company as a result of which any Prospectus the prospectus included in such registration statement, as then in effect, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, misleading in light of the circumstances under which they were made; and, at the request of Purchaser or any underwriter(s)seller of Registrable Securities covered by such registration statement, (i) the Company shall will prepare and furnish such seller a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit delivered to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition purchasers of such Registrable Common Stock (includingSecurities, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock prospectus shall not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf light of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, circumstances under which they were made and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements such registration statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice notice to and including such seller to the date Purchaser either is advised when the Company made available to such seller an appropriately amended or supplemented prospectus;
(g) cause the Registrable Securities, if any, covered by such registration statement to be listed on each securities exchange on which similar securities issued by the Company that are then listed and to enter into such customary agreements as may be required in furtherance thereof, including without limitation listing applications and indemnification agreements in customary form;
(h) provide a transfer agent and registrar for the Registrable Securities, if any, covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary arrangements and take all such other actions as the holders of a majority (by number of shares) of the Registrable Securities, if any, covered by such registration statement or the underwriters, if any, reasonably request in order to expedite or facilitate the Qualifying Offering or the disposition of such Registrable Securities (including using its best efforts to effect a stock split or a combination of shares);
(j) make available for inspection by any seller of Registrable Securities covered by such registration statement, any underwriter participating in any disposition of securities pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company and all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff in connection with such registration statement, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(k) subject to the other provisions hereof, use all reasonable efforts to cause the Registrable Securities, if any, covered by such registration statement to be registered with or approved by such governmental agencies or authorities or self-regulatory organizations as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(l) use all reasonable efforts to obtain a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten offering, dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified the Company's financial statements included in such registration statement, addressed to the Company, to each seller of the Registrable Securities (if any) covered by such registration statement, and to the underwriters, if any, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and with respect to events subsequent to the date of such financial statements, as are customarily covered in Registration Rights Agreement accountants' letters delivered to the underwriters in underwritten public offerings of securities and such other financial matters as any such seller or the underwriters, if any, may reasonably request;
(m) otherwise use all reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, in each case as soon as practicable, an earnings statement covering a period of at least twelve months, beginning with the first month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(n) permit any holder of Registrable Securities covered by such registration statement, which holder, in the sole judgment, exercised in good faith, of such holder might be deemed to be a controlling person of the Company (within the meaning of the Securities Act or the Exchange Act) to participate in the preparation of such registration statement and to include therein material, furnished to the Company in writing, which in the reasonable judgment of such holder should be included and which is reasonably acceptable to the Company;
(o) use all reasonable efforts to obtain the lifting at the earliest possible time of any stop order suspending the effectiveness of such registration statement or of any order preventing or suspending the use of any preliminary prospectus included therein;
(p) at any time file or make any amendment to such registration statement, or any amendment of or supplement to the Prospectus may be resumed or receives the copies prospectus included therein (including amendments of the supplemented documents incorporated by reference into the prospectus), (i) of which each 399 Stockholder and the managing underwriters (in the case of a Qualifying Offering requested pursuant to Section 2.1(a)) or amended Prospectus contemplated each seller of Registrable Securities covered by Section 8(asuch registration statement or the managing underwriters, if any (in all other cases), shall not have previously been advised and furnished a copy or (ii) (a “Blackout Period”). In any eventto which the Required 399 Stockholders, the Company managing underwriters or counsel for the Required 399 Stockholders or the managing underwriters (in the case of a Qualifying Offering requested pursuant to Section 2.1(a)), or the sellers of a majority (by number of shares) of the Registrable Securities covered by such registration statement, the managing underwriters (if any) or counsel for such sellers or any such managing underwriters (in all other cases), shall not be entitled reasonably object;
(q) make such representations and warranties (subject to deliver more than a total appropriate disclosure schedule exceptions) to the sellers of three the Registrable Securities, if any, covered by such registration statement and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters and selling holders, as the case may be, in underwritten public offerings of substantially the same type; and
(3r) Suspension Notices if such registration statement refers to any seller of Registrable Securities covered thereby by name or notices otherwise as the holder of any Delay Period in any twelve (12)-month period.
(f) The Company shall not permit any officer, director, underwriter, broker or any other person acting on behalf securities of the Company then (whether or not such seller is or might be deemed to use be a controlling person of the Company), (i) at the request of such seller, insert therein language, in form and substance reasonably satisfactory to such seller, the Registration Rights Agreement Company and the managing underwriters, if any, to the effect that the holding by such seller of such securities is not to be construed as a recommendation by such seller of the investment quality of the Registrable Securities or the Company's other securities covered thereby and that such holding does not imply that such seller will assist in meeting any free writing prospectus future financial requirements of the Company, or (as defined ii) in Rule 405 under the event that such reference to such seller by name or otherwise is not required by the Securities Act) in connection with , any registration statement covering Registrable Common Stocksimilar Federal or state statute, without or any rule or regulation of any regulatory body having jurisdiction over the prior written consent offering, at the request of Purchaser and any underwritersuch seller, delete the reference to such seller.
Appears in 1 contract
Sources: Registration Rights Agreement (Allied Digital Technologies Corp)
Procedures. (i) From time to time (but no more than once per calendar year), if Axiall desires to purchase Incremental Interests pursuant to Section (a), Axiall shall deliver to Lotte a written notice (the “Call Exercise Notice”) In connection with at any time on or prior to the registration Call Termination Date, further to which Axiall and sale Lotte shall buy and sell the Incremental Interests that are the subject of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect Call Exercise Notice at the registration and the sale of such Registrable Common Stock closing in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedownthis Section 1(b), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;.
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in At each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statementclosing, each amendment of Axiall and supplement thereto, Lotte shall provide customary representations and warranties to each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management that (A) as to Lotte, it has full right, title and interest in and to the Incremental Interests that are the subject of the relevant Call Exercise Notice, (B) as to each party, it has all the necessary power and authority and has taken all necessary action to buy and sell (as applicable) such Incremental Interests as contemplated by this Section 1, and (C) as to Lotte, such Incremental Interests are free and clear of any and all Liens other Company personnel than those arising under the LLC Agreement. At the closing of any sale and purchase pursuant to cooperate this Section 1, Lotte shall (subject to the last sentence of Section 2(a)) (transfer the Incremental Interests that are the subject of relevant Call Exercise Notice to Axiall, free and clear of any Liens, by delivery of a transfer instrument with Purchaser and respect to such Incremental Interests, which shall be in a form acceptable to Axiall acting reasonably, against receipt of the underwriter(s) in connection with performing due diligence) and Call Purchase Price from Axiall by wire transfer of immediately available funds.
(iii) cause its counsel to issue opinions The closing of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration any sale of Incremental Interests pursuant to this Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if 1 shall take place no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month periodfollowing receipt by Lotte of a Call Exercise Notice. If the Company Axiall shall give Purchaser any Suspension Notice, the Company shall extend the period Lotte at least ten (10) Business Days’ written notice of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of closing with respect to each exercise of a Call Right (the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout PeriodClosing Date”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with the registration 4.1 Registration Procedures and sale of Registrable Common Stock pursuant to Obligations. Whenever required under this Agreement, the Company shall use its reasonable best efforts Appendix to effect the registration and Registration of any Registrable Securities held by the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofHolders, and pursuant thereto the Company shall Listco shall, as expeditiously as reasonably practicablepossible:
(ia) prepare Prepare and file with the SEC Commission a Registration Statement with respect to such those Registrable Common Stock Securities and use its reasonable best efforts to cause such that Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and not be withdrawn until the underwriter or underwriters, if any, copies of date on which all such documents proposed Registrable Securities have been sold pursuant to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser such Registration Statement; (and the underwriter(s), if anyb) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare Prepare and file with the SEC such Commission amendments and supplements to such that Registration Statement and the Prospectus prospectus used in connection therewith with the Registration Statement as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Applicable Securities Act Law with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s; (c) in connection with each shelf takedown;
(iii) furnish Furnish to Purchaser such the Holders the number of copies of such Registration Statementa prospectus, each amendment including a preliminary prospectus, required by Applicable Securities Law, and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such any other documents as Purchaser and any underwriter(s) they may reasonably request in order to facilitate the disposition of Registrable Securities owned by them; (d) 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 the offering; (e) Notify each Holder of Registrable Common Stock, 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 covered by the Company;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), Registration Statement at any time when a Prospectus prospectus relating thereto is required to be delivered under the Applicable Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact Law or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which any prospectus included in the Prospectus included (or deemed included) Registration Statement, as then in such Registration Statement contains effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; (f) Provide a “Suspension Notice”)transfer agent and registrar for all Registrable Securities Registered pursuant to the Registration Statement and, Purchaser will forthwith discontinue disposition where applicable, a CUSIP number for all those Registrable Securities, in each case not later than the effective date of the Registration; (g) Use its commercially best efforts to furnish, at the request of any Holder requesting Registration of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective Securities pursuant to this Agreement by Appendix, on the number of days during the period from and including date that such Registrable Securities are delivered for sale in connection with a Registration pursuant to this Appendix, (i) an opinion, dated the date of the giving sale, of such Suspension Notice the counsel representing Listco for the purposes of the Registration, in form and substance as is customarily given to underwriters in an underwritten public offering; and including (ii) a comfort letter dated the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives sale, from the copies independent certified public accountants of Listco, in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the underwriters; (h) Take all reasonable action necessary to list the Registrable Securities on the primary exchange upon which the Listco Ordinary Shares are traded; and
(i) Take all reasonable action necessary to: (a) cause the Depositary to accept the deposit of the supplemented Registrable Securities into the deposit facility to issue ADSs (or amended Prospectus contemplated by Section 8(areceipts) representing such Registrable Securities; and (b) cause the Depositary to register with the SEC (to the extent necessary) such ADSs and to maintain the effectiveness of a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without on Form F-6 relating to the prior written consent ADSs and an adequate number of Purchaser and any underwriterADSs available for issuance thereunder.
Appears in 1 contract
Sources: Investors Rights Agreement
Procedures. Whenever TRC shall include Registration Shares owned by a Stockholder (a"Selling Stockholder") In connection with the registration and sale of Registrable Common Stock pursuant to this Agreementin a Registration Statement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicableTRC shall:
(i) promptly prepare and file with the SEC Commission a Registration Statement on an appropriate form with respect to such Registrable Common Stock the Registration Shares (as well as any necessary amendments or supplements thereto), and use its reasonable best efforts to cause such the Registration Statement to become effective as soon as practicable thereafter; and before filing a promptly effective.
(ii) furnish to each Selling Stockholder copies of the Registration Statement or Prospectus or and any amendments or supplements thereto (including and any prospectus supplement for forming a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) part thereof prior to filing filing;
(iii) notify each Selling Stockholder, promptly after TRC shall receive notice thereof, of the time when the Registration Statement became effective or when any amendment or supplement to any prospectus forming a part of the Registration Statement has been filed;
(iv) notify each Selling Stockholder promptly of any request by the Commission for the amending or supplementing of such Registration Statement or prospectus or for additional information;
(v) advise each Selling Stockholder, after TRC shall receive notice or obtain knowledge thereof, of the issuance of any order by the Commission suspending the effectiveness of any Registration Statement or amendment thereto or of the initiation or threatening of any Prospectus proceeding for that purpose, and promptly use its best efforts to prevent the issuance of any stop order or any supplement theretoto obtain its withdrawal promptly if such stop order should be issued;
(iivi) prepare and file with the SEC Commission such amendments and supplements to such the Registration Statement and the Prospectus used in connection therewith prospectus forming a part thereof as may be necessary to keep such the Registration Statement effective for the lesser of (A) a period of not less than 90 days, in time necessary to permit each Selling Stockholder pursuant to the case of a Demand Registration Statement or an aggregate to dispose of eighteen (18) months, in the case all of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement Shares, (B) nine (9) months and (C) the maximum period of time permitted by law to keep effective a registration statement, and comply with the provisions of the Securities Act with respect to the disposition of all securities shares of Common Stock covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof each Selling Shareholder set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(ivvii) use its reasonable best efforts to register or qualify such Registrable Common Stock Registration Shares under such other securities or blue sky laws of such jurisdictions as determined by the managing Underwriter after consultation with TRC (domestic or foreignif there is no Underwriter, as determined by TRC) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) each Selling Stockholder to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, Registration Shares; provided that the Company TRC will not be required (except for the State of Tennessee) to (1A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)paragraph, (2B) subject itself to taxation in any such jurisdiction or (3C) consent to general service of process in any such jurisdiction);
(vviii) notify Purchaser and each Selling Stockholder, during any underwriter(s), at any time period when a Prospectus relating thereto prospectus is required to be delivered under the Securities Act, of the occurrence happening of any event as a result of which any Prospectus the prospectus contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s)each Selling Stockholder, the Company shall prepare a supplement or amendment to such Prospectus prospectus so that, as thereafter supplemented and/or amended, that such Prospectus shall prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock Registration Shares to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national at least one securities exchange selected by or the Company NASDAQ System and agreed to by Purchasercomply with the applicable requirements of such exchange or the NASDAQ System and the applicable rules and regulations under the Securities and Exchange Act of 1934;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Registration Shares not later than the effective date of such the Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to enter into such customary agreements (including an underwriting agreement in customary form) and take all such other actions as the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in Selling Stockholder or the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant theretoUnderwriter(s), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that reasonably request in order to expedite or facilitate the disposition of the Registration Shares (including, without limitation, effecting a stock split or a combination of shares);
(xii) make available for inspection by each Selling Stockholder, any Underwriter participating in any disposition pursuant to such accountants are Registration Statement, and any attorney, accountant or other agent retained by each Selling Stockholder or such Underwriter, all financial and other records, pertinent corporate documents and properties of TRC, and cause TRC's officers, directors and employees to supply all information reasonably requested by each Selling Stockholder, or an underwriter, attorney, accountant or agent in connection with such Registration Statement;
(xiii) use its best efforts to cause Registration Shares covered by such Registration Statement to be promptly registered with or approved by such other governmental agencies or authorities as may be necessary to enable each Selling Stockholder to consummate the disposition of such Registration Shares;
(xiv) obtain a cold comfort letter from TRC's independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are of the type customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Actcold comfort letters; and
(xiiixv) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment cause TRC's counsel to the Registration Statement has been filed and, provide customary legal opinions in connection with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with The Corporation will, subject to the registration and sale of Registrable Common Stock pursuant to this Agreementlimitations provided herein, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and possible: use its reasonable best efforts to cause such Registration Statement to become effective and to remain continuously effective for a period that will terminate upon the earlier of (i) the date on which all Registrable Securities, covered by such Registration Statement, as soon as practicable amended from time to time, have been sold, or (ii) the date on which all Registrable Securities may be sold pursuant to Rule 144(k) (the "Registration Period"); prepare and file with the SEC the requisite registration statement to effect such registration, and thereafter, use reasonable efforts to cause such registration statement to become effective; and provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (thereto, including any prospectus supplement for a shelf takedown)documents incorporated by reference, the Corporation will furnish to Purchaser counsel to the Investors and the managing underwriter or underwriters, if any, draft copies of all such documents proposed to be filedfiled (other than exhibits, including unless so requested) a reasonable time prior thereto, which documents incorporated by reference in will be subject to the Prospectus and, if requested by Purchaser, the exhibits incorporated by referencereasonable review of such counsel and such Investors and underwriters, and Purchaser (will notify each Investor of any stop order issued by the SEC in connection therewith and the underwriter(s), if any) shall have the opportunity take all reasonable actions required to review and comment thereon, and the Company will make remove such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) stop order; prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be reasonably necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement andregistration statement; provided however that the Corporation may, at any time, delay the filing or suspend the effectiveness of any registration under this Agreement, or without suspending such effectiveness instruct the Investors not to sell any Registrable 4 Securities included in any such registration, (i) if the case Corporation shall have determined upon the advice of counsel that the Shelf Registration StatementCorporation would be required to disclose any actions taken or proposed to be taken by the Corporation in good faith and for valid business reasons, prepare including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Corporation or on such actions, or (ii) if required by law, to update the prospectus supplements containing relating to any such disclosures as may be reasonably requested registration to include updated financial statements (a "Suspension Period"), by Purchaser or any underwriter(s) in connection providing the Investors with each shelf takedown;
(iii) furnish to Purchaser such number of copies written notice of such Registration Statement, each amendment Suspension Period and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, reasons therefore; provided, however, that the Company Corporation will not be required to disclose such reasons with particularity if an authorized executive officer of the Corporation certifies that the Corporation believes it is required by law to delay the filing or suspend the effectiveness of any such registration. In addition, the Corporation shall have no not be required to keep any registration effective, or may without suspending such obligation effectiveness, instruct the Investors if it has Registrable Securities included in such registration not to sell such Securities, during any period which the Corporation is instructed, directed, ordered or otherwise requested by any governmental agency or self-regulatory organization to stop or suspend such trading or sales ("Supplemental Extension Period"). In the event of a Suspension Period or Supplemental Extension Period, the period during which any registration under this Agreement is to remain effective pursuant to this Section 3.1(a) shall be tolled until the end of any such Suspension Period or Supplemental Extension Period. The Corporation will use reasonable efforts to limit any Suspension Period or Supplemental Extension Period to less than 30 days; furnish to the Investors such number of conformed copies of a final such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus if the conditions of contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 172(c) 424 under the Securities Act are satisfied by Act, and such other documents, as the Company;
(iv) Investors may reasonably request; use its reasonable best efforts to register or qualify such all Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic in the United States of America as each Investor shall reasonably request and to keep such registration or foreign) qualification in effect for so long as Purchaser such registration statement remains in effect, and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such Investor to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such Investor, except that the Company will Corporation shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 3.1(d) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction);
(v) . use its reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Investors to consummate the disposition of such Registrable Securities; notify Purchaser and any underwriter(s)in writing the Investors, if Registrable Securities are covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, and at the request of Purchaser or any underwriter(s), the Company shall an Investor prepare and furnish to such Investor a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date purchasers of such Registration Statement;
(xi) if requestedsecurities, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of such prospectus shall not include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty light of the circumstances under which they were made. otherwise use reasonable efforts to comply with respect to information relating to Purchaser furnished to all applicable rules and regulations of the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall SEC and make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following the resolution or clearance of all SEC comments orreasonably practicable, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue earnings statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend covering the period of time during which at least twelve months beginning with the Company is required to maintain first full calendar month after the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of such registration statement, which earnings statement shall satisfy the giving provisions of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use Section 11(a) of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any ; provide and cause to be maintained a transfer agent for all Registrable Securities covered by such registration statement covering from and after a date not later than the effective date of such registration statement; and use its reasonable efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Common Stock, without the prior written consent of Purchaser and any underwriterStock is then listed.
Appears in 1 contract
Sources: Piggyback Registration Rights Agreement (Ouvo, Inc.)
Procedures. (a) In connection with the registration and sale of any Registrable Common Stock pursuant to Securities under the Securities Act as provided in this AgreementArticle II, the Company shall will use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicableto:
(ia) prepare and file with cause the SEC a Shelf Registration Statement with respect to such (and any other related registrations, qualifications or compliances as may be reasonably requested and as would permit or facilitate the sale and distribution of all Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement Securities until the distribution thereof is complete) to become effective as soon as practicable thereafter; and before following the filing a thereof but not later than 180 days after the Registration Statement or Prospectus or any amendments or supplements thereto Notice Date (including any prospectus supplement for a shelf takedownthe “Scheduled Effective Date”), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iib) prepare and file with the SEC such Commission the amendments and supplements to such the Shelf Registration Statement and the Prospectus (as defined below) used in connection therewith and take all other actions as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to continuously effective until the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Holder or Holders thereof set forth in such the Shelf Registration Statement andis completed, and to comply with the provisions of the Securities Act (to the extent applicable to the Company) with respect to the dispositions;
(c) (i) at least five (5) Business Days before filing with the Commission, furnish to each Holder and its counsel (if any) copies of all documents proposed to be filed with the Commission in connection with such registration, which documents will be subject to the case review and reasonable comment of such Holder and its counsel; (ii) furnish to each Holder of Registrable Securities a reasonable number of copies of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each and of the Prospectus included in the Shelf Registration Statement (including each preliminary Prospectus prospectus), in conformity with the requirements of the Securities Act, and Prospectus supplement) and such the other documents (including exhibits to any of the foregoing), as Purchaser and any underwriter(s) the Holder may reasonably request request, in order to facilitate the disposition of the Registrable Common StockSecurities owned by such Holder; (iii) respond as promptly as practicable to any comments received from the Commission with respect to each Shelf Registration Statement or any amendment thereto and, 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;
as promptly as reasonably possible; and (iv) use its reasonable best efforts provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Shelf Registration Statement that pertains to the Holders as “Selling Stockholders” but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Company.
(d) register or qualify such the Registrable Common Stock Securities covered by the Shelf Registration Statement under such other the securities or “blue sky sky” laws of such jurisdictions (domestic or foreign) the various states as Purchaser and any underwriter(s) Holder reasonably requests and do any and all other acts and things that may be reasonably necessary or reasonably advisable to enable Purchaser and any underwriter(s) a Holder to consummate the disposition in such jurisdictions states of the Registrable Common Stock (providedSecurities owned by such Holder, except that the Company will not be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify not, but for the requirements of this subparagraph (ivSection 2.03(d), (2) be obligated to be qualified, or to subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(xe) provide a transfer agent and registrar for all such the Registrable Common Stock Securities covered by the Shelf Registration Statement not later than the effective date of such the Shelf Registration Statement;
(xif) if requestednotify the Holders promptly, cause to be deliveredand confirm such notice in writing, immediately prior to (i)(A) when a prospectus as contained in the pricing of any underwritten offering, immediately prior to effectiveness of each Shelf Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xiia “Prospectus”) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed andfiled, and (B) with respect to the a Shelf Registration Statement or any post-effective amendment, when the same has become effective;
, (2ii) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Shelf Registration Statement or the Registration Statement; and
initiation of any proceedings for that purpose, (4iii) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Common Stock Securities for sale under in any jurisdiction or the applicable securities initiation or blue sky laws threatening of any jurisdiction.
proceeding for such purpose, (biv) The Company represents and warrants of the existence of any fact or the happening of any event that no makes any statement made in such Shelf Registration Statement (including or related Prospectus or any amendments document incorporated or supplements thereto and Prospectuses contained therein) shall deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in such Shelf Registration Statement, Prospectus or documents so that, in the case of the Shelf Registration Statement, it will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except misleading, and that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf case of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto it will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company contain any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading misleading, (v) of the Company’s reasonable determination that a post-effective amendment to a Shelf Registration Statement would be appropriate, or (vi) of any request by the Commission or other governmental authority for amendments or supplements to a Shelf Registration Statement or related Prospectus or for additional information that pertains to the Holders as “Suspension NoticeSelling Stockholders” or the “Plan of Distribution”);
(g) enter into customary agreements (including, Purchaser will forthwith discontinue in the event the Holders elect to engage an underwriter in connection with the Shelf Registration Statement, an underwriting agreement containing customary terms and conditions) and take all other actions as may be reasonably required in order to expedite or facilitate the disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereofSecurities; provided, however, that such postponement the Company will not be liable for any underwriter’s fees, commissions and discounts or similar expenses; and
(h) make every reasonable effort to obtain the withdrawal of sales any order suspending the effectiveness of the Shelf Registration Statement or any suspension of the qualification of any of the Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate Securities for sale in any 12 month period. If jurisdiction, at the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodearliest possible time.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (Trinity Place Holdings Inc.)
Procedures. (a) In connection with the registration and sale of Whenever an Investor requests that any Registrable Common Stock Securities be registered or sold pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the intended methods of disposition thereofunderwritten offering, and pursuant thereto the Company shall as expeditiously soon as reasonably practicable:practicable (unless otherwise stated below):
(i) prepare and file with the SEC SEC, as applicable, (A) a Registration Statement on the appropriate form under the Securities Act, which form shall be selected by the Company in its sole discretion, with respect to such Registrable Common Stock Securities and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafteror (B) the prospectus supplement contemplated in Section 1(b)(ii) hereof; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedowntakedown but not including any report filed or furnished pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC from time to time thereunder (the “Exchange Act”)), furnish provide to Purchaser one representative on behalf of all Investors included in such Registration Statement (the “Representative”) and the underwriter or underwriters, if anymanaging underwriter(s), copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, (but not including any report filed or furnished pursuant to the exhibits incorporated by referenceExchange Act or any exhibit to the Registration Statement), and Purchaser the Representative (and the managing underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as may be reasonably requested by Purchaser the Representative (and the managing underwriter(s), if any) prior to filing any Registration Statement such filing, unless the Company reasonably objects to such changes or amendment thereto or any Prospectus or any supplement theretoadditions;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be reasonably necessary to keep such Registration Statement continuously effective for a period of not less than 90 days, days from the date on which the SEC declares such Registration Statement effective or from the date of filing of the prospectus supplement contemplated in the case of a Demand Registration Statement or an aggregate of eighteen Section 1(b)(ii) hereof, as applicable (18) months, in the case of a Shelf Registration Statement (plus, in each case, plus the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition underwritten offering by Purchaser thereof the Investor set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such or prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownsupplement;
(iii) furnish to Purchaser each Investor whose Registrable Securities are included in a Registration Statement such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser such Investor and any managing underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, Securities; 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;.
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser the Investor(s) whose Registrable Securities are included in a Registration Statement and any underwriter(s) reasonably requests in writing and use its reasonable best efforts to do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser the Investor(s) and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock Securities (provided, provided that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or jurisdiction, (3) consent to general service of process in any such jurisdictionjurisdiction or (4) make any changes to any report filed or furnished pursuant to the Exchange Act that are incorporated by reference into such Registration Statement);
(v) notify Purchaser each Investor whose Registrable Securities are included in a Registration Statement, and any managing underwriter(s), ) at any time when a Prospectus relating thereto is required to be delivered or made available under the Securities Act, of the occurrence of any event as a result of which any the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the reasonable request of Purchaser any such Investor or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including an underwriting agreements agreement in customary form), (ii) take all such other actions as Purchaser the Representative or the managing underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock Securities (including, without limitation, causing senior management and other Company personnel to reasonably cooperate with Purchaser the Investor(s) whose Registrable Securities are included in a Registration Statement and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel addressed and delivered to the underwriter(s) in form, substance and scope as are customary in primary underwritten offerings, addressed subject to customary limitations, assumptions and delivered to the underwriter(s) and Purchaserexclusions;
(vii) in connection with each Demand Registration pursuant the case of an underwritten offering, use its reasonable best efforts to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to reasonably cooperate with the managing underwriter(s) in connection with customary marketing activities (including select conference calls and calls, one-on-one meetings with prospective purchaserspurchasers and road shows);
(viii) make available for inspection by Purchaserthe Investor(s) whose Registrable Securities are included in a Registration Statement, any underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser any such Investor or underwriter, at reasonable times and in a reasonable manner, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, directors and employees and independent accountants to supply all information reasonably requested by Purchaserany such Investor, any sales or placement agent, underwriter, any attorney, any accountant or any agent to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act in connection with such Registration Statement; provided that the foregoing investigation and information gathering shall be coordinated on behalf of such parties by one firm of counsel designated by and on behalf of such parties; and provided, further, that if any such information is identified by the Company as being confidential or proprietary, each Person receiving such information shall agree to take such actions as are reasonably necessary to protect the confidentiality of such information if requested by the Company;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, maintain or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Securities not later than the effective date of such Registration StatementStatement or prospectus supplement, as applicable;
(xix) if requestedrequested by the managing underwriter(s) of an underwritten offering, use reasonable best efforts to cause to be delivered, immediately prior to upon the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, and at the time of closing of the sale of Registrable Common Stock Securities pursuant thereto), “comfort” letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, the underwriter(s) stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by “comfort” letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xiixi) make generally available cause all Registrable Securities covered by such registration to Purchaser and its Affiliates a consolidated earnings statement (be listed on each securities exchange or inter-dealer quotation system on which need not be audited) for similar securities issued by the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities ActCompany are then listed; and
(xiiixii) promptly notify Purchaser the Representative and the underwriter or underwriters, if any:any managing underwriter(s):
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed (but not including any report filed or furnished pursuant to the Exchange Act) and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerProspectus;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Securities for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser each Investor whose Registrable Securities are included in a Registration Statement (i) promptly as soon as reasonably practicable after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one an executed copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement theretothereto (other than filings pursuant to the Exchange Act), each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff Staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference thereinStatement, and (ii) such number of copies of each a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Investor or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities. The Company will promptly as soon as reasonably practicable notify Purchaser the Representative of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any the prospectus supplement or amendment to such Shelf Registration Statement or of any Prospectus supplementcontemplated in Section 1(b)(ii) hereof. The Company will promptly as soon as reasonably practicable respond to any and all comments received from the SEC or the Staff of the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as reasonably practicable and shall file an acceleration request, if necessary, request as soon as reasonably practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) . The Company may require Purchaser an Investor to furnish to the Company any other information regarding Purchaser such Investor and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required or desirable to be included in any Registration StatementStatement or the prospectus supplement contemplated by Section 1(b)(ii) hereof.
(ec) Purchaser agrees thatUpon notice from the Company of the happening of any event of the kind described in clauses (2), (3) or (4) of Section 6(a)(xii) hereof or upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement (including the prospectus supplement contemplated by Section 1(b)(ii) hereof, as applicable) contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser the Investor(s) will forthwith discontinue disposition of Registrable Common Stock Securities pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in until the case of an event described in Section 3(d)Investor(s) until Purchaser is are advised in writing by the Company that the use of the Prospectus may be resumed and and, if necessary, is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a6(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser the Investor(s) any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements Statement effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Investor(s) either is are advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a6(a) hereof (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) two Suspension Notices or notices of any Delay Period in any twelve (12)-month 12-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock the Acquisition Shares pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock the Acquisition Shares in accordance with Purchaser’s Holder's intended methods method of disposition thereofthereof and, and pursuant thereto in connection therewith, the Company shall as expeditiously as reasonably practicable:
(i1) prepare and file with the SEC a the Shelf Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such the Shelf Registration Statement to become and remain effective as soon as practicable thereafter; in accordance with Section 2.01(a) and (b) above;
(2) prepare and file with the SEC amendments and supplements to the Shelf Registration Statement and the prospectuses used in connection therewith in accordance with Section 2.01(c) above;
(3) before filing a with the SEC the Shelf Registration Statement or Prospectus prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, the Company shall furnish to Purchaser one counsel selected by Holder and one counsel for the underwriter or underwriterssales or placement agent, if any, copies in connection therewith, drafts of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, filed and Purchaser (and the underwriter(s), if any) shall have the provide such counsel with a reasonable opportunity to for review thereof and comment thereon, such review to be conducted and such comments to be delivered with reasonable promptness;
(4) promptly (i) notify Holder of each of (x) the Company will make filing and effectiveness of the Shelf Registration Statement and each prospectus and any amendments or supplements thereto, (y) the receipt of any comments from the SEC or any state securities law authorities or any other governmental authorities with respect to any such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Shelf Registration Statement or amendment thereto prospectus or any Prospectus amendments or supplements thereto, and (z) any oral or written stop order with respect to such registration, any suspension of the registration or qualification of the sale of the Acquisition Shares in any jurisdiction or any supplement initiation or threatening of any proceedings with respect to any of the foregoing and (ii) use reasonable best efforts to obtain the withdrawal of any order suspending the registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any related prospectus in any jurisdiction with respect thereto;
(ii5) prepare furnish to Holder, the underwriters or the sales or placement agent, if any, and file with one counsel for each of the SEC such amendments and supplements to such foregoing, a conformed copy of the Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen each amendment and supplement thereto (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period including all exhibits thereto) and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such additional number of copies of such Shelf Registration Statement, each amendment and supplement theretothereto (in such case, each Prospectus without such exhibits), the prospectus (including each preliminary Prospectus prospectus) included in such Shelf Registration Statement and Prospectus supplement) prospectus supplements and all exhibits thereto and such other documents as Purchaser and any underwriter(s) Holder, underwriter, agent or such counsel may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Acquisition Shares by the CompanyHolder;
(iv6) if requested by Holder or the managing underwriter or underwriters of a Rule 415 Offering, subject to approval of counsel to the Company in its reasonable judgment, promptly incorporate in a prospectus, supplement or post-effective amendment to the Shelf Registration Statement such information concerning underwriters and the plan of distribution of the Acquisition Shares as such managing underwriter or underwriters or Holder reasonably shall furnish to the Company in writing and request be included therein, including, without limitation, information with respect to the number of Acquisition Shares being sold by Holder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any other terms of the underwritten offering of the Acquisition Shares to be sold in such offering; and make all required filings of such prospectus, supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such prospectus, supplement or post-effective amendment;
(7) use its reasonable best efforts to register or qualify such Registrable Common Stock the Acquisition Shares under such other securities or "blue sky sky" laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) Holder reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) Holder to consummate the disposition in such jurisdictions of in which the Registrable Common Stock Acquisition Shares are to be sold and keep such registration or qualification in effect for so long as the Shelf Registration Statement remains effective under the Securities Act (provided, provided that the Company will shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)paragraph, (2ii) subject itself to taxation in any such jurisdiction where it would not otherwise be subject to taxation but for this paragraph or (3iii) consent to the general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject to general service of process but for this paragraph);
(v) 8) notify Purchaser and any underwriter(s)Holder, at any time when a Prospectus prospectus relating thereto to the Shelf Registration Statement is required to be delivered under the Securities Act, upon the discovery that, or of the occurrence happening of any event as a result of which any Prospectus which, the Shelf Registration Statement, as then in effect, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading, and, at subject to Section 2.03 above, promptly prepare and furnish to the request of Purchaser or any underwriter(s), the Company shall prepare Holder a supplement or amendment to the prospectus contained in the Shelf Registration Statement so that the Shelf Registration Statement shall not, and such Prospectus so that, prospectus as thereafter supplemented and/or amendeddelivered to the purchasers of such Acquisition Shares shall not, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading;
(vi9) cause all of the Acquisition Shares to be listed on each national securities exchange and included in each established over- the-counter market on which or through which the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaseris then listed or traded;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii10) make available for inspection by PurchaserHolder, any underwriter participating in any disposition pursuant to a the Shelf Registration Statement, and any attorney, accountant or other agent retained by Purchaser Holder or underwriter, all pertinent reasonably requested financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors, employees employees, attorneys and independent accountants to supply all information reasonably requested by PurchaserHolder, any underwriterunderwriters, any attorneyattorneys, any accountant accountants or any agent agents in connection with such the Shelf Registration Statement; information which the Company determines, in good faith, to be confidential shall not be disclosed by such persons unless, subject to Section 2.03 above, (i) the disclosure of such information is required by applicable federal securities laws or is necessary to avoid or correct a misstatement or omission in such Shelf Registration Statement or (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; Holder agrees, on its own behalf and on behalf of all of its underwriters, accountants, attorneys and agents, that the information obtained by any of them as a result of such inspections shall be deemed confidential unless and until such is made generally available to the public; Holder further agrees, on its own behalf and on behalf of all of its underwriters, accountants, attorneys and agents, 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 its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential; nothing contained herein shall require the Company to waive any attorney- client privilege or disclose attorney work product;
(ix11) use its reasonable best efforts to cause comply with all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior applicable laws related to the pricing of any underwritten offering, immediately prior to effectiveness of each Shelf Registration Statement (and, in the case of an underwritten offering, at the time of closing of the and offering and sale of Registrable Common Stock pursuant thereto)securities and all applicable rules and regulations of governmental authorities in connection therewith (including, letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriterwithout limitation, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable Exchange Act, and the rules and regulations adopted promulgated by the SEC thereunder, Commission) and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement security holders as soon as reasonably practicable (but in any event not later than fifteen (15) months after the end effectiveness of such period, which the Shelf Registration Statement) an earnings statement shall satisfy of the requirements of an earning statement under Company and the Company Subsidiaries complying with Section 11(a) of the Securities Act;
(12) use reasonable best efforts to furnish to Holder a signed counterpart of (x) an opinion of counsel for the Company and (y) a "comfort" letter signed by the independent public accountants who have certified the Company's financial statements included or incorporated by reference in such registration statement, covering such matters with respect to such registration statement and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities for the account of, or on behalf of, a holder of common stock, such opinion and comfort letters to be dated the date that such opinion and comfort letters are customarily dated in such transactions; and
(xiii13) promptly notify Purchaser and take other actions as Holder or the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to expedite or facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewAcquisition Shares.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock the Acquisition Shares pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock the Acquisition Shares in accordance with Purchaser’s Holder's intended methods method of disposition thereofthereof and, and pursuant thereto in connection therewith, the Company shall as expeditiously promptly as reasonably practicable:
(i1) prepare and file with the SEC a the Shelf Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such the Shelf Registration Statement to become and remain effective as soon as practicable thereafter; in accordance with Section 2.01(a) and (b) above;
(2) prepare and file with the SEC amendments and supplements to the Shelf Registration Statement and the prospectuses used in connection therewith in accordance with Section 2.01(c) above;
(3) before filing a with the SEC the Shelf Registration Statement or Prospectus prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, the Company shall furnish to Purchaser one counsel selected by Holder and one counsel for the underwriter or underwriterssales or placement agent, if any, copies in connection therewith, drafts of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, filed and Purchaser (and the underwriter(s), if any) shall have the provide such counsel with a reasonable opportunity to for review thereof and comment thereon, such review to be conducted and such comments to be delivered with reasonable promptness;
(4) promptly (i) notify Holder of each of (x) the Company will make filing and effectiveness of the Shelf Registration Statement and each prospectus and any amendments or supplements thereto, (y) the receipt of any comments from the SEC or any state securities law authorities or any other governmental authorities with respect to any such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Shelf Registration Statement or amendment thereto prospectus or any Prospectus amendments or supplements thereto, and (z) any oral or written stop order with respect to such registration, any suspension of the registration or qualification of the sale of the Acquisition Shares in any jurisdiction or any supplement initiation or threatening of any proceedings with respect to any of the foregoing and (ii) use reasonable best efforts to obtain the withdrawal of any order suspending the registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any related prospectus in any jurisdiction with respect thereto;
(ii5) prepare furnish to Holder, the underwriters or the sales or placement agent, if any, and file with one counsel for each of the SEC such amendments and supplements to such foregoing, a conformed copy of the Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen each amendment and supplement thereto (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period includ- ing all exhibits thereto) and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such additional number of copies of such Shelf Registration Statement, each amendment and supplement theretothereto (in such case, each Prospectus without such exhibits), the prospectus (including each preliminary Prospectus prospectus) included in such Shelf Registration Statement and Prospectus supplement) prospectus supplements and all exhibits thereto and such other documents as Purchaser and any underwriter(s) Holder, underwriter, agent or such counsel may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Acquisition Shares by the CompanyHolder;
(iv6) in connection with a sale of Acquisition Shares by or through an underwriter, if requested by Holder or the managing underwriter or underwriters of a Rule 415 Offering, subject to approval of counsel to the Company in its reasonable judgment, promptly incorporate in a prospectus, supplement or post-effective amendment to the Shelf Registration Statement such information concerning underwriters and the plan of distribution of the Acquisition Shares as such managing underwriter or underwriters or Holder reasonably shall furnish to the Company in writing and request be included therein, including, without limitation, information with respect to the number of Acquisition Shares being sold by Holder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any other terms of the underwritten offering of the Acquisition Shares to be sold in such offering; and make all required filings of such prospectus, supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such prospectus, supplement or post-effective amendment;
(7) use its reasonable best efforts to register or qualify such Registrable Common Stock the Acquisition Shares under such other securities or "blue sky sky" laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) Holder reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) Holder to consummate the disposition in such jurisdictions of in which the Registrable Common Stock Acquisition Shares are to be sold and keep such registration or qualification in effect for so long as the Shelf Registration Statement remains effective under the Securities Act (provided, provided that the Company will shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)paragraph, (2ii) subject itself to taxation in any such jurisdiction where it would not otherwise be subject to taxation but for this paragraph or (3iii) consent to the general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject to general service of process but for this paragraph);
(v) 8) notify Purchaser and any underwriter(s)Holder, at any time when a Prospectus prospectus relating thereto to the Shelf Registration Statement is required to be delivered under the Securities Act, upon the discovery that, or of the occurrence happening of any event as a result of which any Prospectus which, the Shelf Registration Statement, as then in effect, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading, and, at subject to Section 2.03 above, promptly prepare and furnish to the request of Purchaser or any underwriter(s), the Company shall prepare Holder a supplement or amendment to the prospectus contained in the Shelf Registration Statement so that the Shelf Registration Statement shall not, and such Prospectus so that, prospectus as thereafter supplemented and/or amendeddelivered to the purchasers of such Acquisition Shares shall not, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading;
(vi9) cause all of the Acquisition Shares to be listed on each national securities exchange and included in each established over-the-counter market on which or through which the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock is then listed or traded;
(including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s10) in connection with performing due diligence) and (iii) cause its counsel to issue opinions a sale of counsel in formAcquisition Shares by or through an underwriter, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by PurchaserHolder, any underwriter participating in any disposition pursuant to a the Shelf Registration Statement, and any attorney, accountant or other agent retained by Purchaser Holder or underwriter, all pertinent reasonably requested financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors, employees employees, attorneys and independent accountants to supply all information reasonably requested by PurchaserHolder, any underwriterunderwriters, any attorneyattorneys, any accountant accountants or any agent agents in connection with such the Shelf Registration Statement; information which the Company determines, in good faith, to be confidential shall not be disclosed by such persons unless, subject to Section 2.03 above,
(i) the disclosure of such information is required by applicable federal securities laws or is necessary to avoid or correct a misstatement or omission in such Shelf Registration Statement or (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; Holder agrees, on Holder's own behalf and on behalf of all of Holder's underwriters, accountants, attorneys and agents, that the information obtained by any of them as a result of such inspections shall be deemed confidential unless and until such is made generally available to the public; Holder further agrees, on Holder's own behalf and on behalf of all of Holder's underwriters, accountants, attorneys and agents, that Holder 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 Holder's expense, to undertake appropriate action to prevent disclosure of the information deemed confidential; nothing contained herein shall require the Company to waive any attorney-client privilege or disclose attorney work product;
(ix11) use its reasonable best efforts to cause comply with all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior applicable laws related to the pricing of any underwritten offering, immediately prior to effectiveness of each Shelf Registration Statement (and, in the case of an underwritten offering, at the time of closing of the and offering and sale of Registrable Common Stock pursuant thereto)securities and all applicable rules and regulations of governmental authorities in connection therewith (including, letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriterwithout limitation, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable Exchange Act, and the rules and regulations adopted promulgated by the SEC thereunder, Commission) and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement security holders as soon as reasonably practicable (but in any event not later than fifteen (15) months after the end effectiveness of such period, which the Shelf Registration Statement) an earnings statement shall satisfy of the requirements of an earning statement under Company and the Company Subsidiaries complying with Section 11(a) of the Securities Act;
(12) in connection with a sale of Acquisition Shares by or through an underwriter, use reasonable best efforts to furnish to Holder a signed counterpart of (x) an opinion of counsel for the Company and (y) a "comfort" letter signed by the independent public accountants who have certified the Company's financial statements included or incorporated by reference in such registration statement, covering such matters with respect to such registration statement and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities for the account of, or on behalf of, a holder of common stock, such opinion and comfort letters to be dated the date that such opinion and comfort letters are customarily dated in such transactions; and
(xiii13) promptly notify Purchaser and take other actions as Holder or the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to expedite or facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewAcquisition Shares.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreementeach Registration ---------- Statement, the following procedures shall be followed:
(i) The Company shall use its reasonable best efforts to effect the such registration and to permit the sale of such Registrable Common Stock the Transfer Restricted Securities being sold in accordance with Purchaser’s the intended method or methods of disposition thereofdistribution thereof (as indicated in the information furnished to the Company pursuant to Sections 2(b) and 4(c) hereof), and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) will prepare and file with the SEC Commission a Registration Statement with respect relating to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or the registration on any amendments or supplements thereto (including any prospectus supplement appropriate form under the Act, which form shall be available for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution sale of the securities covered by such Registration Statement and comply with the provisions of the Transfer Restricted Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by Purchaser distribution thereof set forth (including, without limitation, one or more underwritten offerings) within the time periods and otherwise in accordance with the provisions hereof. The Company shall not include in the Shelf Registration Statement any securities other than the Transfer Restricted Securities.
(ii) The Company shall notify each Holder of its right to include its Transfer Restricted Securities in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;.
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws keep the Shelf Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 2 of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of Agreement. Upon the occurrence of any event as a result of which that would cause any Registration Statement or the Prospectus contains an untrue statement of a material fact or omits any material fact necessary contained therein (A) to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
misleading or (viB) in not to be effective and usable for resale of Transfer Restricted Securities during the case of period required by this Agreement, the Company shall file promptly an underwritten offeringappropriate amendment to such Registration Statement curing such defect, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other casesif Commission review is required, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock amendment to be listed on NASDAQdeclared effective as soon as practicable.
(iv) The Company shall prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period set forth in Section 2 hereof, or cause the Prospectus to be supplemented by any exchange on which securities required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the Act in a timely manner; and comply with the provisions of the same class issued Act with respect to the disposition of all Transfer Restricted Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the Company are then listed or, if no sellers thereof set forth in such similar securities are then listed, on a national securities exchange selected by Registration Statement or supplement to the Company and agreed to by Purchaser;Prospectus.
(xv) provide a transfer agent The Company shall advise the Holders and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriterunderwriters, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; promptly and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
requested by such Persons, confirm such advice in writing, (1A) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed filed, and, with respect to the any Registration Statement or any post-post- effective amendmentamendment thereto, when the same has become effective;
, (2B) of any written request by the SEC Commission for amendments to the Registration Statement or amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC for additional information relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
thereto, (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement; and
(4) Statement under the Act or of the receipt suspension by the Company of any notification with respect to the suspension state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any Registrable Common Stock jurisdiction, or the initiation of any proceeding for sale any of the preceding purposes, and (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Registration Statement in order to make the statements therein not misleading, or that requires the making of any additions to or changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time the applicable Commission shall issue any stop order suspending the effectiveness of the Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Transfer Restricted Securities under state securities or blue sky laws Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal or lifting of any jurisdictionsuch order at the earliest possible time.
(bvi) The Subject to Section 5(a)(iii) hereof, if any fact or event contemplated by Section 5(a)(v)(D) above shall exist or have occurred, the Company represents and warrants that no shall prepare a supplement or post-effective amendment to the Registration Statement (including or related Prospectus or any amendments document incorporated therein by reference or supplements thereto and Prospectuses contained therein) shall file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain any an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(vii) The Company shall furnish to each Holder named in any Registration Statement or Prospectus and underwriter, if any, in connection with such sale before filing with the Commission, copies of any Registration Statement or any Prospectus included therein or any amendments or supplements to any such Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Registration Statement), which documents will be subject to the review and comment of such Persons in connection with such sale, if any, for a period of at least five Business Days (in the case of a Shelf Registration Statement) or one Business Day (in the case of a Piggyback Registration Statement), and the Company will not file any such Registration Statement or Prospectus or any amendment or supplement to any such Registration Statement or Prospectus (including all such documents incorporated by reference) to which such Persons shall reasonably object within five Business Days after the receipt thereof.
(viii) Promptly prior to the filing of any document that is to be incorporated by reference into a Registration Statement or Prospectus, the Company shall provide copies of such document to the Holders, and underwriters, if any, in connection with such sale, make the Company's representatives available for discussion of such document and other customary due diligence matters, and include such information in such document prior to the filing thereof as such Holders may reasonably request.
(ix) The Company shall make available at reasonable times for inspection by the Holders and underwriters, if any, and any attorney or accountant retained by such Holders, or underwriters, if any, all financial and other records, pertinent corporate documents of the Company and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Holder, underwriters, if any, attorney or accountant in connection with such Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness; provided, however, that such persons shall first agree in writing with the Company that (1) any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such persons, unless (A) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (B) disclosure of such information is required by law (including any disclosure requirements pursuant to Federal securities laws in connection with the filing of any Registration Statement or the use of any Prospectus referred to in this Agreement), (C) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such person or (D) such information becomes available to any such person from a source other than the Company and such source is not bound by a confidentiality agreement and (2) not to purchase or sell any securities of the Company while in possession of material non-public information about the Company in violation of the applicable securities laws of the United States.
(x) If requested by any Holders or underwriters, if any, in connection with such sale, the Company shall promptly include in any Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if necessary, such information as such Holders or underwriters, if any, may reasonably request to have included therein, including, without limitation, information relating to the "Plan of Distribution" of the Transfer Restricted Securities; and make all required filings of such Prospectus supplement or post-effective amendment as soon as practicable after the Company is notified of the matters to be included in such Prospectus supplement or post-effective amendment.
(xi) The Company shall furnish to each Holder and underwriter, if any, without charge, at least one copy of the Registration Statement, as first filed with the Commission, and of each amendment thereto, including all documents incorporated by reference therein and all exhibits (including exhibits incorporated therein by reference).
(xii) The Company shall deliver to each Holder and underwriter, if any, without charge, as many copies of the Prospectus (including each preliminary Prospectus) and any amendment or supplement thereto as such Persons reasonably may request; the Company hereby consents to the use (in accordance with law) of the Prospectus and any amendment or supplement thereto by each Holder and each underwriter, if any, in connection with the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto.
(xiii) Upon the request of any Holder or underwriter, if any, the Company shall enter into such agreements (including underwriting agreements) and make such representations and warranties and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Transfer Restricted Securities pursuant to any Registration Statement contemplated by this Agreement as may be reasonably requested by such Person in connection with any sale or resale pursuant to any applicable Registration Statement and in such connection, the Company shall:
(1) upon request of any Holder or underwriter, if any, the Company shall furnish (or in the case of subparagraphs (B) and (C) below, use its best efforts to cause to be furnished) to each Holder or underwriter, if any, upon the effectiveness of the Registration Statement:
(A) a certificate, dated such date, signed on behalf of the Company by (x) the President or any Vice President and (y) a principal financial or accounting officer of the Company, confirming, as of the date thereof, the matters set forth in Section 5 of the Purchase Agreement and such other similar matters as the Holders may reasonably request;
(B) an opinion, dated the date of effectiveness of the Registration Statement, of counsel for the Company, which shall address matters customarily addressed in opinions of counsel for issuers of securities in public offerings registered under the Act and shall be in form an substance satisfactory to the Holders in their reasonable judgment), and in any event include a statement to the effect that such counsel has participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants for the Company and have considered the matters required to be stated therein and the statements contained therein, although such counsel has not independently verified the accuracy, completeness or fairness of such statements; and that such counsel advises that, on the basis of the foregoing, no facts came to such counsel's attention that caused such counsel to believe that the Registration Statement, at the time such Registration Statement or any post-effective amendment thereto became effective, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except misleading, or that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) contained in such Registration Statement contains as of its date, contained an untrue statement of a material fact or omits any omitted to state a material fact necessary in order to make the statements therein therein, in the light of the circumstances under which they were made, not misleading (a “Suspension Notice”)misleading. Without limiting the foregoing, Purchaser will forthwith discontinue disposition such counsel may state further that such counsel assumes no responsibility for, and has not independently verified, the accuracy, completeness or fairness of Registrable Common Stock pursuant to such the financial statements, notes and schedules and other financial data included in any Registration Statement for contemplated by this Agreement or the related Prospectus; and
(C) a reasonable length customary comfort letter, dated as of time not to exceed 10 days (45 days the date of effectiveness of the Registration Statement from the Company's independent accountants, in the case customary form and covering matters of an event described the type customarily covered in Section 3(d)comfort letters to underwriters in connection with underwritten offerings; and
(2) until Purchaser is advised The Company shall deliver such other documents and certificates as may be reasonably requested by the Holders and underwriters, if any, to evidence compliance with the matters set forth in writing clause (A) above and with any customary conditions contained in the any agreement entered into by the Company that pursuant to this clause (2).
(xiv) Prior to any public offering of Transfer Restricted Securities, the use Company shall cooperate with the Holders, underwriters, if any, and their respective counsel in connection with the registration and qualification of the Prospectus Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions as such Persons may be resumed request and is furnished with a supplemented do any and all other acts or amended Prospectus as contemplated things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by Section 8(a) hereofthe applicable Registration Statement; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled required to deliver more register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than a total of three (3) Suspension Notices or notices of any Delay Period as to matters and transactions relating to the Registration Statement, in any twelve (12)-month periodjurisdiction where it is not now so subject.
(fxv) In connection with any sale of Transfer Restricted Securities that will result in such securities no longer being Transfer Restricted Securities, the Company shall cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and to register such Transfer Restricted Securities in such denominations and such names as the Holders may request at least two Business Days prior to such sale of Transfer Restricted Securities.
(xvi) The Company shall not permit (A) list all Shares of Common Stock covered by such Registration Statement on any officer, director, underwriter, broker securities exchange on which the Common Stock is then listed or any other person acting (B) authorize for quotation on behalf the National Association of Securities Dealers Automated Quotation System ("NASDAQ") or the National Market System of NASDAQ all Shares of Common Stock covered by such Registration Statement if the Common Stock is then so authorized for quotation.
(xvii) The Company shall use its best efforts to cause the disposition of the Company Transfer Restricted Securities covered by the Registration Statement to use any free writing prospectus (be registered with or approved by such other governmental agencies or authorities as defined in Rule 405 under may be necessary to enable the Securities Act) in connection with any registration statement covering Registrable Common Stockseller or sellers thereof to consummate the disposition of such Transfer Restricted Securities, without the prior written consent of Purchaser and any underwriter.subject t
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this AgreementShelf Registration Statement, the Company shall shall:
(i) use its reasonable best efforts to effect the such registration and to permit the sale of such Registrable Common Stock the Transfer Restricted Securities being sold in accordance with Purchaser’s the intended method or methods of disposition thereofdistribution thereof (as indicated in the information furnished to the Company pursuant to Section 3(b) hereof), and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) will prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of Commission a Shelf Registration Statement (plusrelating to the registration on any appropriate form under the Act, in each case, which form shall be available for the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution sale of the securities covered by such Registration Statement and comply with the provisions of the Transfer Restricted Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended method or methods of disposition by Purchaser distribution thereof set forth (including, without limitation, one or more underwritten offerings) within the time periods and otherwise in such Registration Statement and, accordance with the provisions hereof. The Company shall not be permitted to include in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or Statement any underwriter(s) in connection with each shelf takedown;securities other than the Transfer Restricted Securities.
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(ivii) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws contact all Holders of such jurisdictions (domestic or foreign) as Purchaser Transfer Restricted Securities and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable notify each Holder of its right to enable Purchaser and any underwriter(s) to consummate the disposition include its Transfer Restricted Securities in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);Shelf Registration Statement.
(viii) notify Purchaser use its reasonable best efforts to keep such Shelf Registration Statement continuously effective and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under provide all requisite financial statements for the Securities Act, period specified in Section 3 of this Agreement. Upon the occurrence of any event as (including, without limitation, pending negotiations relating to, or the consummation of, a result transaction or the occurrence of any event which any Prospectus contains an untrue statement would require additional disclosure of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), non-public information by the Company shall prepare in the Shelf Registration Statement as to which the Company has a supplement bona fide business purpose for preserving confidential or amendment which renders the Company unable to comply with Commission requirements) that would cause any such Shelf Registration Statement or the Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contained therein (A) to contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
misleading or (viB) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company not to be available to participate in, effective and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available usable for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties resale of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Transfer Restricted Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised required by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any eventthis Agreement, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.the
Appears in 1 contract
Sources: Registration Rights Agreement (Akamai Technologies Inc)
Procedures. (a) In connection with If and as often as the registration and sale Seller is required by the provisions of this Section 5 to include shares of Registrable Common Stock pursuant to this AgreementSecurities held by the Purchaser in a registration statement filed under the Securities Act, the Company shall use Seller, at its reasonable best efforts to effect the registration expense and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible, agrees to:
(i) in accordance with the Securities Act and all applicable rules and regulations, prepare and file with the SEC Commission a Registration Statement registration statement with respect to such Registrable Common Stock securities and use its reasonable best efforts to cause such Registration Statement registration statement to become and remain effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)period of 90 days (or, furnish to Purchaser if such registration statement has been filed on Form S-3 and the underwriter or underwritersPurchaser has indicated in its request for a Demand Registration that it is requesting a shelf registration pursuant to Rule 415 under the Securities Act, if any, copies for a period of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, two years) and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC Commission such amendments and supplements to such Registration Statement registration statement and the Prospectus used in connection therewith prospectus contained therein as may be necessary to keep such Registration Statement registration statement effective for a and such registration statement and prospectus accurate and complete during such period of not less than 90 days, in time;
(ii) furnish to the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of Purchaser and to any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution underwriters of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser being registered such number of copies of such Registration Statement, the registration statement and each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) prospectus, final prospectus and such other documents as such underwriters and Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition public offering of the Registrable Common Stock, 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 Companysecurities;
(iviii) use its reasonable best efforts to register or qualify the securities covered by such Registrable Common Stock registration statement under such other state securities or blue sky laws of such jurisdictions (domestic or foreign) as the Purchaser and any underwriter(s) underwriters may reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable request within 20 days prior to enable Purchaser and any underwriter(s) to consummate the disposition in original filing of such jurisdictions of the Registrable Common Stock (providedregistration statement, except that the Company will Seller shall not for any purpose be required to (1) execute a general consent to service of process or to qualify generally to do business as a foreign corporation in any jurisdiction where it would is not otherwise be required so qualified, or to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction jurisdiction;
(iv) notify the Purchaser promptly after it shall receive notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or (3) consent a supplement to general service any prospectus forming a part of process in any such jurisdiction)registration statement has been filed;
(v) prepare and file promptly with the Commission, and promptly notify the Purchaser and of the filing of, such amendments or supplements to such registration statement or prospectus as may be necessary to correct any underwriter(s)statements or omissions if, at any the time when a Prospectus prospectus relating thereto to such securities is required to be delivered under the Securities Act, of the occurrence of any event has occurred as a the result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser such prospectus or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, other prospectus as thereafter supplemented and/or amended, such Prospectus shall not contain then in effect would include an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;; and
(vi) in advise the case of an underwritten offeringPurchaser, (i) enter into such customary agreements (including underwriting agreements in customary form)promptly after it shall receive notice or obtain knowledge thereof, (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order by the Commission suspending the effectiveness of such registration statement or the Registration Statement; and
(4) of the receipt by the Company initiation or threatening of any notification with respect to the suspension of the qualification of any Registrable Common Stock proceeding for sale under the applicable securities or blue sky laws of any jurisdictionthat purpose.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Decode Genetics Inc)
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall use its reasonable best efforts is required to effect the registration and the sale of such any Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofSecurities as provided herein, and pursuant thereto the Company shall will, subject to the limitations provided herein, as expeditiously as reasonably practicablepossible:
(ia) prepare and (as soon thereafter as possible or in any event no later than sixty (60) days after the end of the period within which requests for registration may be given to the Company) file with the SEC a Registration Statement with respect the requisite registration statement to effect such Registrable Common Stock registration and thereafter use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereafter; and before remain effective for a period of not less than ninety (90) days or until all of such Registrable Securities have been disposed of (if earlier);
(b) if requested, prior to filing a Registration Statement registration statement or Prospectus prospectus or any amendments amendment or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, furnish to Purchaser the Holders requesting registration of Registrable Securities and the underwriter or underwriterseach underwriter, if any, of the Registrable Securities covered by such registration statement copies of all such documents registration statement or prospectus or any amendment or supplement thereto as proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iic) prepare and file with the SEC such amendments and supplements to such Registration Statement any registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during registration statement until such period time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by Purchaser the Holders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownregistration statement;
(iiid) furnish without charge to Purchaser each Holder of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such Registration Statement, each amendment and supplement thereto, each Prospectus registration statement (including each preliminary Prospectus prospectus and Prospectus supplementany summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, and such other documents documents, as Purchaser and any underwriter(s) such Holder may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Companyrequest;
(ive) use its reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions as any Holder shall reasonably request, to keep such registration or qualification in effect for so long as such registration statement remains in effect (domestic provided, however, that the Company shall not in any event be required to keep such registration or foreignqualification in effect for a period of more than ninety (90) as Purchaser days after such registration or qualification becomes effective), and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) Holder to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such Holder, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 4.2(e) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ixf) use its reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Holders thereof to consummate the disposition of such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by PurchaserSecurities;
(xg) provide furnish to the underwriters in an underwritten offering a transfer agent and registrar copy or, upon request, a signed counterpart, addressed to the underwriters, of:
(i) an opinion of counsel for all such Registrable Common Stock not later than the effective Company (reasonably acceptable to the underwriters), dated the date of such Registration Statement;the closing under the underwriting agreement, and
(xiii) if requesteda "comfort" letter, cause dated the date of the closing under the underwriting agreement, signed by the independent public accountants who have audited the Company's financial statements included in such registration statement, covering substantially the same matters with respect to be delivered, immediately prior to such registration statement (and the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (prospectus included therein) and, in the case of an the accountants' letter, with respect to events subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten offeringpublic offerings of securities and, in the case of the accountants' letter, such other financial matters, and, in the case of the legal opinion, including to the effect that (i) a registration statement covering Registrable Securities has been filed with the SEC under the Securities Act and has been made effective by order of the SEC; (ii) a prospectus meeting the requirements as to form and content of the Securities Act is available for delivery in connection with the disposition of the Registrable Securities; (iii) to the best of such counsel's knowledge, no stop order has been issued by the SEC suspending the effectiveness of such registration statement; (iv) to the best of such counsel's knowledge, no proceedings for the issuance of such a stop order are threatened or contemplated; and (v) such counsel has no reason to believe that the registration statement and prospectus, at the time of closing of the sale of Registrable Common Stock pursuant thereto)registration statement became effective, letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit omitted to state a any material fact required to be stated therein, therein or necessary in order to make the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.light
Appears in 1 contract
Sources: Registration Rights Agreement (Toreador Resources Corp)
Procedures. Upon receipt of a request from the Holders pursuant to Section 2.2, the Corporation will, subject to Section 2.2, effect the Secondary Registration as requested. In particular, the Corporation will, in each case as applicable: (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its commercially reasonable best efforts to effect the registration prepare and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereoffile, and pursuant thereto the Company shall as expeditiously soon as reasonably practicable:
, in the English language and, if required, French language, a Prospectus Supplement under and in compliance with Applicable Securities Laws of each Canadian jurisdiction in which the Secondary Registration is to be effected and such other related documents as may be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit a registered public offering (iwhether or not underwritten) of the Designated Registrable Securities by the Holders in the applicable Canadian jurisdictions; (b) use commercially reasonable efforts to prepare and file, as soon as reasonably practicable, with the SEC a Prospectus Supplement, covering the distribution of the Designated Registrable Securities and such other related documents as may be reasonably necessary to be filed in connection with such Prospectus Supplement and take all other steps and proceedings that may be reasonably necessary in order to permit a registered public offering (whether or not underwritten) of the Designated Registrable Securities by the Holders in the United States; (c) use commercially reasonable efforts to prepare and file with the SEC a applicable Canadian Securities Regulatory Authorities in the Canadian jurisdictions in which the Secondary Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed is to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, effected and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to the Prospectus Supplement, as may be reasonably necessary to comply with the provisions of Applicable Securities Laws with respect to the Registration of Designated Registrable Securities, and take such steps as are reasonably necessary to maintain the effectiveness of the Prospectus and the Registration Statement during the term of this Agreement; (d) notify promptly each Holder of Registrable Securities under a Registration Statement or Canadian Base Prospectus and, if requested by such Holder, promptly confirm such advice in writing: (i) when a Registration Statement or Canadian Base Prospectus has become effective and when any post‑effective amendment or supplement thereto becomes effective; (ii) of any request by the SEC, any U.S. state securities authority or any Canadian Securities Regulatory Authority for additional information after the Registration Statement or Canadian Base Prospectus has become effective or for any post‑effective amendment or supplement to a Registration Statement or Canadian Base Prospectus; (iii) of the issuance by the SEC, any U.S. state securities authority or any Canadian Securities Regulatory Authority of any stop order or cease trade order suspending the effectiveness of a Registration Statement or Canadian Base Prospectus or the initiation of any proceedings for that purpose; (iv) if, between the effective date of a Registration Statement or Canadian Base Prospectus and the closing of any sale of Registrable Securities pursuant to this Agreement covered by such Registration Statement, the representations and warranties of the Corporation contained in any underwriting agreement or similar agreement, if any, relating to the offering cease to be true and correct in all material respects; (v) of the happening of any event or the discovery of any facts during the period a Registration Statement or Canadian Base Prospectus is effective as a result of which such Registration Statement and or Canadian Base Prospectus or any document incorporated by reference therein contains any misrepresentation; (vi) of the receipt by the Corporation of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; (vii) if for any other reason it shall be necessary to amend or supplement the Registration Statement, the Prospectus used or the Canadian Base Prospectus in connection therewith order to comply with Applicable Securities Laws; and (viii) of the filing of any post‑effective amendment to the Registration Statement or Canadian Base Prospectus that is not automatically effective upon filing; (e) use commercially reasonable efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by the Holders of the Designated Registrable Securities covered by the Prospectus Supplement under such other securities or "blue sky" laws of such jurisdictions as designated by the Holders, acting reasonably, in the request for Demand Registration, (ii) prepare and file in those jurisdictions, such amendments (including post‑effective amendments) and supplements to such registrations and qualifications as may be reasonably necessary to maintain their effectiveness until the time at which the distribution of the Designated Registrable Securities is completed (the "Distribution Period"), (iii) take such other actions as may be necessary to keep maintain such Registration Statement effective registrations and qualifications in effect at all times during the Distribution Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Designated Registrable Securities for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth sale in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, jurisdictions; provided, however, that the Company Corporation 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required in connection therewith or as a condition thereto to (1A) qualify generally to do business as a foreign corporation or dealer in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (ivsubsection 3.1(e), (2B) subject itself to any taxation in any such jurisdiction jurisdiction, or (3C) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company . The Corporation shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) Holders of the receipt by the Company Corporation of any notification with respect to the suspension of the registration or qualification of any of the Designated Registrable Common Stock Securities for sale under the applicable securities or "blue sky sky" laws of any jurisdiction.
jurisdiction or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose; (bf) The Company represents and warrants that no Registration Statement (including any amendments unless such documents are publicly available via ▇▇▇▇▇ or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated thereinSEDAR, or necessary to make the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished furnish to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement Holders and any amendment theretounderwriter or underwriters of any such distribution, each preliminary Prospectus and Prospectus and each amendment or supplement theretoupon their request, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each the Base Prospectus, any Prospectus Supplement and any amendment and supplement thereto (including a preliminary Prospectus, and all amendments and supplements thereto any documents incorporated therein by reference) and such other relevant documents as Purchaser or any underwriter the Holders may reasonably request in order to facilitate the disposition distribution of the Designated Registrable Common Stock. The Company will promptly notify Purchaser Securities; (g) unless such documents are publicly available via ▇▇▇▇▇ or SEDAR, furnish to the Holders and any underwriter or underwriters of the effectiveness any such distribution, upon their request, at least one conformed copy of each Registration Statement or and each Canadian Base Prospectus and any post-effective post‑effective amendment or to either of them, including financial statements and schedules (including all documents incorporated therein by reference and all exhibits thereto); (h) furnish to counsel for the filing Holders copies of any supplement or amendment comment letters relating to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments the selling Holders received from the SEC, with a view towards causing each Registration Statement SEC or any amendment thereto to be declared effective Canadian Securities Regulatory Authorities or any other request by the SEC or any Canadian Securities Regulatory Authorities for amendments or supplements to the Base Prospectus or any Prospectus Supplement or for additional information relating to the selling Holders, provided that the Corporation shall not be required to provide copies of any non‑substantial routine correspondence with the SEC or Canadian Securities Regulatory Authorities that does not specifically relate to the selling Holders or any information the disclosure of which would be restricted by applicable privacy laws or other laws governing the treatment of personal information; (i) use commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the Base Prospectus or any Prospectus Supplement at the earliest possible moment; (j) cooperate with the selling Holders to facilitate the timely preparation and delivery of certificates and opinions of counsel necessary to remove any restrictive legends associated with the Registrable Securities to enable such securities to be sold by the selling Holders (whether in a registered or unregistered transaction) as soon the selling Holders may reasonably request; (k) furnish to the Holders and any underwriter or underwriters of any such distribution and such other persons as practicable the Holders may reasonably specify: (i) an opinion or opinions of counsel to the Corporation addressed to the Holders and the underwriter or underwriters of such distribution and dated the closing date of the distribution, which opinion(s) shall file be in form, scope and substance customary for an acceleration requestoffering of the type contemplated by the applicable Secondary Registration, having regard to the form of opinions given by the Corporation's counsel in prior public offerings by the Corporation, and reasonably satisfactory to the Holders and any underwriters; (ii) a customary "comfort letter" addressed to the Holders (subject to the auditors' receipt of required representation letters from the Holders) and the underwriter or underwriters dated the date of the Prospectus Supplement and the closing date of the distribution signed by the auditors of the Corporation (and, if necessary, as soon as practicable following any other auditors of any subsidiary of the resolution Corporation or clearance of all SEC comments or, if applicable, following notification any business acquired by the SEC that any Corporation for which financial statements are, or are required to be, included in the Prospectus), in customary form and covering such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to matters of the Company any other information regarding Purchaser and the distribution of such securities type customarily covered by "comfort letters" as the Company Holder and managing underwriter reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.requests;
Appears in 1 contract
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall is required to use its reasonable best efforts to effect the registration and of any Registrable Securities under the sale of such Registrable Common Stock Securities Act as provided in accordance with Purchaser’s intended methods of disposition thereofSection 2 hereof, and pursuant thereto the Company shall will, subject to the limitations provided herein, as expeditiously as reasonably practicablepossible:
(ia) prepare and file with the SEC a Registration Statement with respect the requisite registration statement to effect such Registrable Common Stock registration, and thereafter, use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereaftereffective; and before filing a Registration Statement or Prospectus or provided that the Company may discontinue any amendments or supplements thereto registration of its securities which are not Registrable Securities (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserunder the circumstances specified in Section 3.1 hereof, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if anyits securities which are Registrable Securities) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) at any time prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement the effective date of the registration statement relating thereto;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, registration statement; provided, however, that the Company shall have no not in any event be required to keep the registration statement effective for a period of more than twelve months after such obligation registration statement becomes effective; and provided further that the Company may, at any time, delay the filing or suspend the effectiveness of any registration under this Agreement, or without suspending such effectiveness, instruct the Purchasers not to furnish copies of a final prospectus sell any Registrable Securities included in any such registration, (i) if the conditions Company shall have determined upon the advice of Rule 172(c) under counsel that the Securities Act are satisfied Company would be required to disclose any actions taken or proposed to be taken by the Company;
Company in good faith and for valid business reasons, including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Company or on such actions, or (ivii) use its reasonable best efforts if required by law, to register or qualify update the prospectus relating to any such Registrable Common Stock under such other securities or blue sky laws registration to include updated financial statements (a "Suspension Period") by providing the Purchasers with written notice of such jurisdictions (domestic or foreign) as Purchaser Suspension Period and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (reasons therefor; provided, however, that the Company will not be required to (1) qualify generally disclose such reasons with particularity if an authorized executive officer of the Company certifies that the Company believes it is required by law to do business in delay the filing or suspend the effectiveness of any jurisdiction where it would such registration. In addition, the Company shall not otherwise be required to qualify but for keep any registration effective, or may without suspending such effectiveness, instruct the Purchasers if it has Registrable Securities included in such registration not to sell such securities, during any period which the Company is instructed, directed, ordered or otherwise requested by any governmental agency or self-regulatory organization to stop or suspend such trading or sales ("Supplemental Extension Period"). In the event of a Suspension Period or Supplemental Extension Period, the period during which any registration under this subparagraph (iv), (2Agreement is to remain effective pursuant to this Section 3.1(b) subject itself to taxation in shall be tolled until the end of any such jurisdiction Suspension Period or (3) consent Supplemental Extension Period. The Company will use reasonable efforts to general service of process in restrict any such jurisdiction)Suspension Period or Supplemental Extension Period to less than 30 days and not to exceed two, twenty-day periods within a twelve month period;
(vc) furnish to the Purchasers such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, and such other documents, as the Purchasers may reasonably request;
(d) use its reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Purchasers to consummate the disposition of such Registrable Securities;
(e) notify Purchaser and any underwriter(s)the Purchasers, if Registrable Securities are covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, and at the request of Purchaser or any underwriter(s), the Company shall Purchasers prepare and furnish to the Purchasers a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date purchasers of such Registration Statement;
(xi) if requestedsecurities, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of such prospectus shall not include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf light of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of circumstances under which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodthey were made.
(f) The Company shall not permit any officer, director, underwriter, broker or any other person acting on behalf otherwise use reasonable efforts to comply with all applicable rules and regulations of the Company SEC and make available to use any free writing prospectus (its security holders, as defined in Rule 405 under soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act; (g) in connection with any provide and cause to be maintained a transfer agent for all Registrable Securities covered by such registration statement covering from and after a date not later than the effective date of such registration statement; and
(h) use its reasonable efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Company's Common Stock, without the prior written consent of Purchaser and any underwriterStock is then listed.
Appears in 1 contract
Sources: Registration Rights Agreement (Uniview Technologies Corp)
Procedures. (a) In connection with the registration Company’s obligations hereunder, the following provisions shall apply:
(a) The Company shall furnish to the Independent Fiduciary, prior to the filing thereof with the SEC, a copy of any amendment, if applicable, to the Registration Statement, a copy of the Prospectus related to the Registrable Securities, and sale each amendment or supplement thereto (excluding amendments caused by the filing of Registrable Common Stock pursuant a report under the Exchange Act), and shall use its commercially reasonable efforts to this Agreementreflect in each such document, when so filed with the SEC, such comments as the Independent Fiduciary may reasonably and promptly propose;
(b) Subject to Section 2(c) hereof, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
ensure that (i) prepare the Registration Statement, any amendment thereto, any Prospectus forming a part thereof and file any amendment or supplement thereto complies in all material respects with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafterSecurities Act; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 daysany amendment thereto does not, in the case of a Demand Registration Statement or an aggregate of eighteen (18) monthswhen it becomes effective, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) misleading and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management any Prospectus forming a part of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorneyamendment or supplement to such Prospectus, accountant does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, that the Company makes no representation with respect to information included therein in reliance upon and in conformity with information furnished to the Company in writing by such underwriter or the Independent Fiduciary, on behalf of the Plan.
(c) The Company, as promptly as reasonably practicable, shall advise the Independent Fiduciary in writing of the following:
(i) of any request by the SEC for amendments of, or supplements to, the Registration Statement or the Prospectus or for additional information (other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties than any such request relating to a review of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration StatementExchange Act filings);
(ixii) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued determination by the Company are then listed or, if no such similar securities are then listed, on that a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect would be appropriate;
(iii) when any amendment to the Registration Statement or any post-effective amendment, has been filed with the SEC and when the same such amendment has become effective;
(2iv) of any written request by the SEC for amendments commencement or supplements to the Registration Statement or any Prospectus or termination of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerSuspension Period;
(3v) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; andStatement or the initiation of any proceedings for that purpose;
(4vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of any the Registrable Common Stock Securities included in the Registration Statement for sale under in any jurisdiction or the applicable securities initiation or blue sky laws threat of any jurisdiction.proceeding for such purpose;
(bvii) The Company represents and warrants of the happening of (but not the nature or details concerning) any event that no requires the making of any changes in the Registration Statement (including any amendments or supplements thereto the related Prospectus so that the statements therein will not be misleading and Prospectuses contained therein) shall contain any the Registration Statement or the Prospectus, as the case may be, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading misleading; and
(except viii) of the Company’s suspension of the use of a Prospectus relating to Registrable Securities as a result of any of the events or circumstances described in paragraphs (ii) through (vii) above, and of the termination of any such suspension. The Independent Fiduciary shall keep confidential the fact that the Company makes no representation or warranty with respect to information has suspended the use of a Prospectus relating to Purchaser furnished Registrable Securities pursuant to the Company by or on behalf of Purchaser specifically for use therein).
(cthis Section 4(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company other information related to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdictionsuch suspension, including any domestic or foreign securities exchange), and each item the occurrence of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and events or circumstances in paragraphs (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewthrough (vii) above.
(d) The Company may require Purchaser shall use its commercially reasonable efforts to furnish to obtain the Company withdrawal of any other information regarding Purchaser and order suspending the distribution effectiveness of such securities as the Company reasonably determines, based on Registration Statement or the advice lifting of counsel, is required to be included any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for offer or sale in any Registration Statementjurisdiction at the earliest possible time.
(e) Purchaser agrees thatThe Company shall promptly deliver to the Independent Fiduciary, upon notice from and to each of the underwriters acting on its behalf, without charge, as many copies of the Prospectus included in the Registration Statement (excluding documents incorporated by reference) related to the Registrable Securities, and any amendment or supplement thereto, as such Person may reasonably request; and, except as provided in Sections 2(c) and 4(q) hereof, the Company consents to the use of the happening Prospectus or any amendment or supplement thereto by the Independent Fiduciary and each underwriter in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto.
(f) Prior to any offering or sale of Registrable Securities pursuant to the Registration Statement, the Company shall (i) register or qualify or cooperate with the Independent Fiduciary in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale, under the securities or blue sky laws of such jurisdictions within the United States as the Independent Fiduciary may reasonably request; (ii) maintain such registration or qualification in effect so long as required and do any and all other acts or things necessary or advisable to permit the continuance of offers and in such jurisdictions for so long as may be necessary to enable the Independent Fiduciary, on behalf of the Plan, and any underwriter, if any, to complete its distribution of such Registrable Securities pursuant to the Registration Statement; and (iii) take any and all other actions necessary or advisable to enable the disposition in such jurisdiction of such Registrable Securities; provided, however, that in no event shall the Company be obligated to (A) qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it would not otherwise be required to so qualify but for this Section 4(f) or (B) file any general consent to service of process in suits in any jurisdiction where it is not as of the date hereof so subject.
(g) The Company shall cooperate with the Independent Fiduciary to facilitate the timely preparation and delivery of the Registrable Securities sold pursuant to the Registration Statement, or in any transaction pursuant to which the Registrable Securities will cease to be Registrable Securities following such transaction in accordance with the terms of this Agreement, free of any restrictive legends and registered in such names as Independent Fiduciary may request at least two Business Days prior to settlement of sales of Registrable Securities pursuant to such Registration Statement, including, without limitation causing an Opinion of Counsel and any other certificates or documents to be delivered to the registrar of the Registrable Securities.
(h) Subject to the exceptions contained in the proviso to Section 4(f), the Company shall use its commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other federal, state and local governmental agencies or authorities, and self-regulatory organizations in the United States as may be necessary to enable the Independent Fiduciary, on behalf of the Plan, to consummate the disposition of such Registrable Securities as contemplated by the Registration Statement; without limitation to the foregoing, the Company shall cooperate with the Independent Fiduciary and the underwriters, if any, in connection with any filings required to be made with FINRA in connection with an offering under the Registration Statement of the Registrable Securities (including, without limitation, such as may be required by FINRA Conduct Rule 5110 or 2710, or by any such underwriters in that regard).
(i) Upon the occurrence of any event as described in Section 4(c)(vii) hereof, the Company shall promptly prepare and file with the SEC a result of post-effective amendment to the Registration Statement or an amendment or supplement to the related Prospectus or any document incorporated therein by reference or file a document which the Prospectus included (is incorporated or deemed included) to be incorporated by reference in such Registration Statement contains or Prospectus, as the case may be, so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the Registration Statement and the Prospectus, in each case as then amended or supplemented, will not include an untrue statement of a material fact or omits omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described the Prospectus, in light of the circumstances under which they were made) not misleading and, in the case of a post-effective amendment, use its commercially reasonable efforts to cause it to become effective as promptly as practicable; provided that the Company’s obligations under this Section 3(d)4(i) until Purchaser is advised in writing by shall be suspended if the Company that has suspended the use of the Prospectus may in accordance with Section 2(c) hereof and given notice of such suspension to the Independent Fiduciary, it being understood that the Company’s obligations under this Section 4(i) shall be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in automatically reinstated at the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving end of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(fj) The Company shall not permit any officer, director, underwriter, broker or any other person acting on behalf comply with all applicable rules and regulations of the SEC and shall make generally available to its security holders as soon as practicable but in any event not later than 18 months after (i) the effective date of the applicable Registration Statement, (ii) the effective date (as defined in Rule 158(c) under the Securities Act) of each post-effective amendment to the Registration Statement, and (iii) the date of each filing by the Company with the SEC of an Annual Report on Form 10-K that is incorporated by reference or deemed to be incorporated by reference in the Registration Statement, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated by the SEC thereunder.
(k) The Company shall use any free writing prospectus its commercially reasonable efforts to take such actions as are under its control to remain a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) (and not become an ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period when the Registration Statement remains in effect and, in the event the Company is not a well-known seasoned issuer or is an ineligible issuer, the Company shall take all actions necessary, including, without limitation, filing such amendments to the Registration Statement and supplements to the Prospectus as may be necessary from time to time and/or filing a new Registration Statement and Prospectus on such appropriate registration form of the SEC, in each case as shall permit the disposition of Registrable Securities in accordance with the intended method or methods of disposition requested by the Independent Fiduciary.
(l) The Company shall cause an amount of Registrable Securities, corresponding to the amount of Registrable Securities existing from time to time pursuant to this Agreement, to be listed on the New York Stock Exchange (or, if the Shares are not then listed on the New York Stock Exchange, the principal securities exchange or quotation system on which the Shares are then listed) no later than the date on which the Plan delivers a Notice of Sale under Section 2 hereof and, in connection therewith, to make such filings as may be required under the Exchange Act and to have such filings declared effective as and when required thereunder.
(m) The Company may require the Independent Fiduciary, on behalf of the Plan, to furnish to the Company such information regarding the Independent Fiduciary and the Plan and the distribution of such Registrable Securities and such additional information as may, from time to time, be required by the Securities Act and the rules and regulations promulgated thereunder, and the obligations of the Company to the Plan hereunder shall be expressly conditioned on the compliance of such Independent Fiduciary and Plan with such request.
(n) The Company shall, if reasonably requested, use its commercially reasonable efforts to promptly incorporate in the Prospectus or post-effective amendment to the Registration Statement (i) such information as the Independent Fiduciary, on behalf of the Plan, provides and, if Registrable Securities are being sold in an Underwritten Offering, as the underwriters reasonably agree should be included therein and provide to the Company in writing for inclusion in the Registration Statement or Prospectus and (ii) such information as the Independent Fiduciary and Plan may provide from time to time to the Company in writing for inclusion in the Prospectus or the Registration Statement concerning the Independent Fiduciary and Plan and the distribution of the Registrable Securities and, in either case, shall make all required filings of such Prospectus Supplement or post-effective amendment promptly after being notified in writing of the matters to be incorporated in such Prospectus Supplement or post-effective amendment, provided that the Company shall not be required to take any action under this Section 4(n) that is not, in the reasonable opinion of counsel for the Company, in compliance with applicable law.
(o) The Company shall enter into such customary agreements (including underwriting agreements) and take all other appropriate actions as may be requested in order to expedite or facilitate the registration or the disposition of the Registrable Securities, and in connection therewith, in the case of an Underwritten Offering, if an underwriting agreement is entered into, cause the same to contain customary representations, warranties, covenants, agreements and indemnification and contribution provisions and procedures by the Company. The plan of distribution in the Registration Statement and the Prospectus included therein shall permit resales of Registrable Securities to be made by the Independent Fiduciary, on behalf of the Plan, through underwriters, brokers, dealers or otherwise, and shall also include such other information as the Independent Fiduciary may reasonably request.
(p) The Company shall, in the case of an Underwritten Offering, if reasonably requested in writing by the Independent Fiduciary or by the underwriters:
(i) make reasonably available for inspection during normal business hours by the Independent Fiduciary, any underwriter participating in any disposition pursuant to the Registration Statement, and any attorney, accountant or other agent retained by any such underwriter or Independent Fiduciary all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries as is customary for due diligence examinations in connection with public offerings;
(ii) cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Independent Fiduciary, any such underwriter, attorney, accountant or agent in connection with any registration statement covering Registrable Common Stockthe Registration Statement as is customary for similar due diligence examinations; provided, however, that any information that is provided by the Company shall be kept confidential by the Independent Fiduciary or any such underwriter, attorney, accountant or agent, unless disclosure thereof is made in connection with a court, administrative or regulatory proceeding or required by law, including any securities law, or such information has become available to the public generally through the Company or through a third party without an accompanying obligation of confidentiality;
(iii) deliver a letter, addressed to the prior written consent of Purchaser Independent Fiduciary, the Plan and any underwriter.the underwriters, if any, in which the Company shall make such representations and warranties in form, substance and scope as are customarily made by issuers to
Appears in 1 contract
Procedures. (a) In connection with Whenever the registration and sale of Company shall include Registrable Common Stock pursuant to this AgreementShares owned by any Holder or Holders in a Registration Statement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicableshall:
(ia) prepare and file with the SEC Commission a Registration Statement with respect to such Registrable Common Stock Shares and use its reasonable best efforts to cause such Registration Statement to become promptly effective as soon as practicable thereafter; and before filing a furnish to the demanding Holder or Holders copies of the Registration Statement or Prospectus or and any amendments or supplements thereto (including and any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) included therein prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretofiling;
(iib) prepare and file with the SEC Commission such amendments and supplements to such Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the lesser of (A) a period of time necessary to permit the demanding Holder or Holders to dispose of all of the Registration Shares and (B) six (6) months (as appropriately extended to reflect any periods when any Holder is not less than 90 days, in the case of a Demand permitted to sell Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Shares pursuant to such Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout PeriodStatement), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such effective period in accordance with the intended methods of disposition by Purchaser thereof the demanding Holder or Holders set forth in such Registration Statement andand cause the prospectus to be supplemented by any required prospectus supplement, in and as so supplemented to be filed pursuant to Rule 424 under the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownSecurities Act;
(iiic) Upon request, furnish to Purchaser the demanding Holder or Holders such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus the prospectus included in such Registration Statement (including each preliminary Prospectus prospectus and Prospectus supplementeach prospectus filed under Rule 424 of the Securities Act) and such other documents as Purchaser and any underwriter(s) each such Holder or Holders may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, Registration Shares owned by such Holder or Holders (it being understood that the Company shall have no consents to the use of the prospectus and any amendment or supplement thereto by such obligation to furnish copies Holder or Holders in connection with the offering and sale of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied Registration Shares covered by the Company;prospectus or any amendment or supplement thereto):
(ivd) use its reasonable best efforts to register or qualify quality such Registrable Common Stock Registration Shares under such other securities or blue sky laws of such jurisdictions as determined by the managing Underwriter after consultation with the Company (domestic or, if there is no managing Underwriter, as determined by the Company), use its best efforts to keep such registration or foreign) as Purchaser and any underwriter(s) reasonably requests qualification effective, including through new filings, amendments or renewals, during the period such Registration Statement is required to be kept effective, and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) the demanding Holder or Holders to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, Registration Shares; PROVIDED that the Company will not be required (A) to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (ivSection 3(d), (2B) to subject itself to taxation in any such jurisdiction or jurisdiction, (3C) to consent to general service of process in any such jurisdiction), (D) to register or qualify as a broker-dealer in any such jurisdiction or (E) to qualify or register in any particular state if such state refuses to permit such registration or qualification because of the expense allocation provisions set forth in Section 5;
(ve) notify Purchaser and any underwriter(s)the demanding Holder or Holders, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence happening of any event as a result of which any Prospectus the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the demanding Holder or any underwriter(s)Holders, the Company shall will promptly prepare (and, when completed, give notice to such Holder or Holders) a supplement or amendment to such Prospectus prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registration Shares, such Prospectus shall prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; PROVIDED that upon such notification by the Company, such Holder or Holders will not offer to sell such Registration Shares until the Company has notified such Holder or Holders that it has prepared a supplement or amendment to such prospectus and delivered copies of such supplement or amendment to such Holder or Holders;
(vif) in use its best efforts to cause all such Registration Shares to be listed, prior to the case date of an underwritten offeringthe first sale of such Registration Shares pursuant to such registration, on each securities exchange on which similar securities issued by the Company are then listed, and, if not so listed, to be listed with The NASDAQ Stock Market;
(ig) enter into all such customary agreements (including underwriting agreements in customary form), (ii) and take all such other actions as Purchaser the demanding Holder or the underwriter(s) Holders of a majority of the Registration Shares being sold or the Underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and PurchaserRegistration Shares;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viiih) make available for inspection on a confidential basis by Purchaserthe demanding Holder or Holders, any underwriter Underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser any such Holder, Holders or underwriterUnderwriter (in each case after reasonable prior notice), all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors, employees and independent accountants to supply on a confidential basis all information reasonably requested by Purchasersuch Holder, any underwriterHolders, any Underwriter, attorney, any accountant or any agent in connection with such Registration Statement;
(ixi) use its reasonable best efforts to cause all such Registrable Common Stock the Registration Shares to be listed on NASDAQ, registered with or any exchange on which securities of approved by such other governmental agencies or authorities within the same class issued by United States and having jurisdiction over the Company are then listed oras may reasonably be necessary to enable the demanding Holder or Holders or the Underwriter or Underwriters, if no any, to consummate the disposition of such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by PurchaserRegistration Shares;
(xj) obtain a cold comfort letter from the Company's independent public accountants in customary form and covering such matters of the type customarily covered by cold comfort letters;
(k) cause the Company's counsel to provide customary legal opinions in connection with such Registration Statement; and
(l) provide a transfer agent and registrar for all such Registrable Common Stock Registration Shares not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (Friendly Ice Cream Corp)
Procedures. (a) In connection with the registration and sale of Whenever an Investor requests that any Registrable Common Stock Securities be registered or sold pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the intended methods of disposition thereofunderwritten offering, and pursuant thereto the Company shall as expeditiously soon as reasonably practicable:practicable (unless otherwise stated below):
(i) prepare and file with the SEC SEC, as applicable, (A) a Registration Statement on the appropriate form under the Securities Act, which form shall be selected by the Company in its sole discretion, with respect to such Registrable Common Stock Securities and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafteror (B) the prospectus supplement contemplated in Section 1(b)(ii) hereof; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedowntakedown but not including any report filed or furnished pursuant to the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC from time to time thereunder (the “Exchange Act”)), furnish provide to Purchaser one representative on behalf of all Investors included in such Registration Statement (the “Representative”) and the underwriter or underwriters, if anymanaging underwriter(s), copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, (but not including any report filed or furnished pursuant to the exhibits incorporated by referenceExchange Act or any exhibit to the Registration Statement), and Purchaser the Representative (and the managing underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as may be reasonably requested by Purchaser the Representative (and the managing underwriter(s), if any) prior to filing any Registration Statement such filing, unless the Company reasonably objects to such changes or amendment thereto or any Prospectus or any supplement theretoadditions;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be reasonably necessary to keep such Registration Statement continuously effective for a period of not less than 90 days, days from the date on which the SEC declares such Registration Statement effective or from the date of filing of the prospectus supplement contemplated in the case of a Demand Registration Statement or an aggregate of eighteen Section 1(b)(ii) hereof, as applicable (18) months, in the case of a Shelf Registration Statement (plus, in each case, plus the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition underwritten offering by Purchaser thereof the Investor set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such or prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownsupplement;
(iii) furnish to Purchaser each Investor whose Registrable Securities are included in a Registration Statement such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser such Investor and any managing underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, Securities; 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;.
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser the Investor(s) whose Registrable Securities are included in a Registration Statement and any underwriter(s) reasonably requests in writing and use its reasonable best efforts to do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser the Investor(s) and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock Securities (provided, provided that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or jurisdiction, (3) consent to general service of process in any such jurisdictionjurisdiction or (4) make any changes to any report filed or furnished pursuant to the Exchange Act that are incorporated by reference into such Registration Statement);
(v) notify Purchaser each Investor whose Registrable Securities are included in a Registration Statement, and any managing underwriter(s), ) at any time when a Prospectus relating thereto is required to be delivered or made available under the Securities Act, of the occurrence of any event as a result of which any the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the reasonable request of Purchaser any such Investor or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including an underwriting agreements agreement in customary form), (ii) take all such other actions as Purchaser the Representative or the managing underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock Securities (including, without limitation, causing senior management and other Company personnel to reasonably cooperate with Purchaser the Investor(s) whose Registrable Securities are included in a Registration Statement and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel addressed and delivered to the underwriter(s) in form, substance and scope as are customary in primary underwritten offerings, addressed subject to customary limitations, assumptions and delivered to the underwriter(s) and Purchaserexclusions;
(vii) in connection with each Demand Registration pursuant the case of an underwritten offering, use its reasonable best efforts to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to reasonably cooperate with the managing underwriter(s) in connection with customary marketing activities (including select conference calls and calls, one-on-one meetings with prospective purchaserspurchasers and road shows);
(viii) make available for inspection by Purchaserthe Investor(s) whose Registrable Securities are included in a Registration Statement, any underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser any such Investor or underwriter, at reasonable times and in a reasonable manner, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, directors and employees and independent accountants to supply all information reasonably requested by Purchaserany such Investor, any sales or placement agent, underwriter, any attorney, any accountant or any agent to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act in connection with such Registration Statement; provided that the foregoing investigation and information gathering shall be coordinated on behalf of such parties by one firm of counsel designated by and on behalf of such parties; and provided, further, that if any such information is identified by the Company as being confidential or proprietary, each Person receiving such information shall agree to take such actions as are reasonably necessary to protect the confidentiality of such information if requested by the Company;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, maintain or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Securities not later than the effective date of such Registration StatementStatement or prospectus supplement, as applicable;
(xix) if requestedrequested by the managing underwriter(s) of an underwritten offering, use reasonable best efforts to cause to be delivered, immediately prior to upon the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, and at the time of closing of the sale of Registrable Common Stock Securities pursuant thereto), “comfort” letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, the underwriter(s) stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by “comfort” letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xiixi) make generally available cause all Registrable Securities covered by such registration to Purchaser and its Affiliates a consolidated earnings statement (be listed on each securities exchange or inter-dealer quotation system on which need not be audited) for similar securities issued by the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities ActCompany are then listed; and
(xiiixii) promptly notify Purchaser the Representative and the underwriter or underwriters, if any:any managing underwriter(s):
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed (but not including any report filed or furnished pursuant to the Exchange Act) and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerProspectus;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Securities for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser each Investor whose Registrable Securities are included in a Registration Statement (i) promptly as soon as reasonably practicable after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one an executed copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement theretothereto (other than filings pursuant to the Exchange Act), each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff Staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference thereinStatement, and (ii) such number of copies of each a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Investor or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities. The Company will promptly as soon as reasonably practicable notify Purchaser the Representative of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any the prospectus supplement or amendment to such Shelf Registration Statement or of any Prospectus supplementcontemplated in Section 1(b)(ii) hereof. The Company will promptly as soon as reasonably practicable respond to any and all comments received from the SEC or the Staff of the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as reasonably practicable and shall file an acceleration request, if necessary, request as soon as reasonably practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) . The Company may require Purchaser an Investor to furnish to the Company any other information regarding Purchaser such Investor and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required or desirable to be included in any Registration StatementStatement or the prospectus supplement contemplated by Section 1(b)(ii) hereof.
(ec) Purchaser agrees thatUpon notice from the Company of the happening of any event of the kind described in clauses (2), (3) or (4) of Section 6(a)(xii) hereof or upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement (including the prospectus supplement contemplated by Section 1(b)(ii) hereof, as applicable) contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser the Investor(s) will forthwith discontinue disposition of Registrable Common Stock Securities pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in until the case of an event described in Section 3(d)Investor(s) until Purchaser is are advised in writing by the Company that the use of the Prospectus may be resumed and and, if necessary, is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a6(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser the Investor(s) any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements Statement effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Investor(s) either is are advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a6(a) hereof (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.a
Appears in 1 contract
Sources: Registration Rights Agreement (Jean Coutu Group (PJC) Inc.)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreementevent the Company receives a Demand Notice, the Company shall will use its reasonable best efforts promptly to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s intended methods of disposition thereofan underwritten offering to the public, and pursuant thereto the Company shall will use its reasonable efforts as expeditiously as reasonably practicablepracticable to:
(ia) prepare (and afford counsel for the Holder reasonably opportunity to review) and file with the SEC a the Registration Statement with respect to such all Registrable Common Stock and use its reasonable best efforts Securities in accordance with Section 2.2 and, if required, to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a effective, and, subject to Section 2.3, keep such Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and effective until the underwriter or underwriters, if any, copies completion of all such documents proposed to be filed, including documents incorporated by reference the underwritten distribution described in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoStatement;
(iib) prepare (and afford counsel for the Holder reasonably opportunity to review) and, subject to Section 2.3, file with the SEC such amendments and supplements to such Registration Statement and (including the Prospectus used in connection therewith with such Registration Statement) as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the Holder’s underwritten disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof as set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iiic) furnish to Purchaser Holder and the underwriters of the Registrable Securities being registered such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser and any underwriter(s) the Holder or such underwriters may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that Securities being registered or the Company shall have no sale of such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied securities by the Companysuch underwriters;
(ivd) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic or foreign) within the United States as Purchaser and any underwriter(s) the managing underwriter reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) the Holder to consummate the underwritten disposition in such jurisdictions of the Registrable Common Stock (Securities owned by the Holder; provided, however, that the Company will not be required to (1A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction subsection or (3B) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (ie) enter into such customary agreements (including an underwriting agreements agreement in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel named executive officers and directors to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and oneexecute lock-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise up agreements in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
lock-ups not to exceed 60 days (xii) make generally available subject to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchangecustomary exceptions), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and take all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.such
Appears in 1 contract
Sources: Repurchase Agreement
Procedures. (a) In Subject to Section 2.03 above, in connection with the registration and sale of Registrable Common Stock the Acquisition Shares pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock the Acquisition Shares in accordance with Purchaser’s Stockholder's intended methods method of disposition thereofthereof and, and pursuant thereto in connection therewith, the Company shall as expeditiously as reasonably practicableshall:
(i1) prepare and file with the SEC a the Shelf Registration Statement, use reasonable efforts to cause the Shelf Registration Statement with respect to such Registrable Common Stock be declared effective, and use its reasonable best efforts to cause keep such Shelf Registration Statement effective in accordance with Sections 2.01(a) and (b) above;
(2) prepare and file with the SEC amendments and supplements to become effective as soon as practicable thereafter; the Shelf Registration Statement, the Prospectus and any documents incorporated therein by reference in accordance with Section 2.01(c) above;
(3) before filing a with the SEC the Shelf Registration Statement or Statement, the Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedownpost-effective amendments), the Company shall furnish to Purchaser and Stockholder, the managing underwriter or underwriters, if any, copies in connection therewith and one counsel selected by Stockholder and one counsel for such underwriter or underwriters, if any, drafts of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, filed and Purchaser (and the underwriter(s), if any) shall have the provide such counsel with a reasonable opportunity to for review thereof and comment thereon, such review to be conducted and such comments to be delivered with reasonable promptness, and the Company will make consider in good faith such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretocomments in such documents;
(ii4) prepare and file with the SEC such amendments and supplements give its full cooperation to such Registration Statement and the Prospectus used Stockholder in connection therewith as may be necessary with its sales of the Acquisition Shares, including, without limitation, making the Company's management available on one occasion for up to keep two weeks to assist in the marketing of such Registration Statement effective for shares through a period of not "road show"; provided however, that Stockholder will provide no less than 90 days, in two weeks' prior notice to the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution Company of the securities covered by commencement of such Registration Statement road show, and comply with in any event the provisions Company will have the right to have at least one representative at such road show;
(5) promptly (i) notify Stockholder of each of (w) the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case filing and effectiveness of the Shelf Registration Statement, prepare such prospectus the Prospectus and any amendments or supplements containing such disclosures as may be reasonably requested by Purchaser thereto, (x) the receipt of any comments from the SEC and, if applicable, any state securities law authorities or any underwriter(sother governmental authorities with respect to any such Shelf Registration Statement, the Prospectus or any amendments or supplement thereto, (y) any request from the SEC or any such other governmental authority that an amendment, supplement or additional information be filed or made available with respect to the Shelf Registration Statement, the Prospectus or any document incorporated by reference therein and (z) any oral or written stop order with respect to such registration, or use of the Prospectus, any suspension of the registration or qualification of the sale of the Acquisition Shares in connection any jurisdiction or any initiation or threatening of any proceedings with respect to any of the foregoing, (ii) provide Stockholder, the managing underwriter or underwriters, if any, and one counsel for each shelf takedownof them with copies of any such comments and requests (if made in writing) and use reasonable efforts to promptly resolve any such comments and requests, including by preparing and filing with the SEC an amendment or supplement to the Shelf Registration Statement, the Prospectus or any document incorporated by reference therein and (iii) use reasonable efforts to prevent the issuance of and, it issued, to obtain the withdrawal of any such order or suspension referred to in clause (2);
(iii6) furnish to Purchaser Stockholder, the managing underwriter or underwriters, if any, and one counsel for each of the foregoing, a conformed copy of the Shelf Registration Statement and each amendment and supplement thereto (in each case, including all exhibits thereto, documents incorporated by reference and post-effective amendments thereto) and such additional number of copies of such Shelf Registration Statement, each amendment and supplement theretothereto (in such case, each Prospectus (including each preliminary without such exhibits or documents incorporated by reference), the Prospectus and Prospectus supplement) all exhibits thereto and such other documents as Purchaser and any underwriter(s) Stockholder, underwriter, agent or such counsel may reasonably request in order to facilitate the disposition of the Registrable Common StockAcquisition Shares by Stockholder, provided, however, that and the Company shall have no hereby consents to the use of the Prospectus and such obligation to furnish copies exhibits and other documents in connection with the offer and sale of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the CompanyAcquisition Shares;
(iv7) use if requested by Stockholder or the managing underwriter or underwriters of a Rule 415 Offering, subject to approval of counsel to the Company in its reasonable best judgment, promptly incorporate in the Prospectus or a post-effective amendment to the Shelf Registration Statement such information concerning underwriters and the plan of distribution of the Acquisition Shares as such managing underwriter or underwriters or Stockholder reasonably shall furnish to the Company in writing and request be included therein, including, without limitation, information with respect to the number of Acquisition Shares being sold by Stockholder to such underwriter or underwriters, and with respect to any other terms of the underwritten offering of the Acquisition Shares to be sold in such offering; and make all required filings of Prospectus or such post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in the Prospectus or such post-effective amendment;
(8) to the extent, if any, necessary to permit the Stockholder or any underwriter to make offers and sales pursuant to the Shelf Registration Statement, use reasonable efforts to register or qualify such Registrable Common Stock the Acquisition Shares under such other securities or "blue sky sky" laws of such jurisdictions (domestic as Stockholder or foreign) as Purchaser and any underwriter(s) such underwriter reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) Stockholder to consummate the disposition in such jurisdictions of in which the Registrable Common Stock Acquisition Shares are to be sold and keep such registration or qualification in effect for so long as the Shelf Registration Statement remains effective under the Securities Act (provided, provided that the Company will shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)paragraph, (2ii) subject itself to taxation in any such jurisdiction where it would not otherwise be subject to taxation but for this paragraph or (3iii) consent to the general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject to general service of process but for this paragraph);
(v9) promptly notify Purchaser and any underwriter(s)Stockholder, at any time when a Prospectus relating thereto is required to be delivered under upon the Securities Actdiscovery that, or of the occurrence happening of any event as a result of which which, the Shelf Registration Statement, the Prospectus or any Prospectus document incorporated therein by reference as then in effect, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading, or at any time whenever any representation or warranty made by the Company pursuant to Section 2.04(b) shall cease to be true in any material respect, and, at the request of Purchaser or any underwriter(s)subject to Section 2.03 above, the Company shall promptly prepare and furnish to Stockholder a supplement or amendment to the Shelf Registration Statement so that the Shelf Registration Statement, the Prospectus or such document shall not, and any Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Acquisition Shares shall not, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii10) cause its counsel all of the Acquisition Shares to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to be listed on the underwriter(s) and PurchaserNYSE;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii11) make available for inspection by PurchaserStockholder, any underwriter participating in any disposition pursuant to a the Shelf Registration Statement, and any attorney, accountant or other agent retained by Purchaser Stockholder or underwriter, all pertinent financial reasonably requested financing and other records, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors, employees employees, attorneys and independent accountants to supply all information reasonably requested by PurchaserStockholder, any underwriterunderwriters, any attorneyattorneys, any accountant accountants or any agent agents in connection with such the Shelf Registration Statement; information which the Company determines, in good faith, to be confidential shall not be disclosed by such persons unless, subject to Section 2.03 above, (i) the disclosure of such information is required by applicable federal securities laws or is necessary to avoid or correct a misstatement or omission in such Shelf Registration Statement, the Prospectus or any document incorporated by reference therein or (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or other governmental authority. Stockholder further agrees, on its own behalf and on behalf of all its underwriters, accountants, attorneys and agents, that it will, upon learning that disclosure of such information determined by the Company to be confidential is sought in a court or by any other governmental authority, give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the information deemed confidential;
(ix12) use its reasonable best efforts to cause comply with all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior applicable laws related to the pricing of any underwritten offering, immediately prior to effectiveness of each Shelf Registration Statement (and, in the case of an underwritten offering, at the time of closing of the and offering and sale of Registrable Common Stock pursuant thereto)securities and all applicable rules and regulations of governmental authorities in connection therewith (including, letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriterwithout limitation, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable Exchange Act, and the rules and regulations adopted promulgated by the SEC thereunder, SEC) and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement security holders as soon as reasonably practicable after the end of such period, which an earnings statement shall satisfy of the requirements of an earning statement under Company and the Company Subsidiaries complying with Section 11(a) of the Securities Act; and;
(xiii13) promptly notify Purchaser use reasonable efforts to furnish to Stockholder and the managing underwriter or underwriters, if any:
, a signed counterpart of (1i) when an opinion of counsel for the Company; (ii) certificates of officers and the secretary of the Company; and (iii) a "cold comfort" letter (and a bring-down version thereof) signed by the independent public accountants who have certified any financial statements included or incorporated by reference in the Shelf Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment covering such matters with respect to the Shelf Registration Statement has been filed and, in the case of the accountants' comfort letter, with respect to such matters as are customarily covered in opinions of issuer's counsel, certificates of the Registration Statement Company and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities for the account of, or any post-effective amendmenton behalf of, when a holder of common stock, such opinion, certificates and comfort letters to be dated the same has become effective;
(2) date or dates that such opinion, certificates and comfort letters are customarily dated in such transactions and, in the case of a Rule 415 Offering, an additional comfort letter on the date of the filing of any written request document containing financial statements to be incorporated by reference in the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Shelf Registration Statement; and
(414) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC take other actions as Stockholder or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdictionunderwriters, including any domestic or foreign securities exchange)if any, and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to expedite or facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewAcquisition Shares.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Stockholder Agreement (Salomon Inc)
Procedures. In connection with any Registration Statement (defined below):
(a) In connection with the registration and sale of Registrable Common Stock pursuant Zamba will promptly (subject to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(iSection 1.4) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC Commission such amendments and supplements post-effective amendments to such the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such the Registration Statement effective for a period of not less than 90 daysas long as such registration is required to remain effective hereunder; will cause the Prospectus (defined below) to be supplemented by any required Prospectus supplement, in and, as so supplemented, to be filed pursuant to Rule 424 under the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period Securities Act; and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and will comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities Shares covered by such Registration Statement during such the applicable period in accordance with the intended methods of disposition by Purchaser thereof the Holders set forth in such the Registration Statement and, in or supplement to the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;Prospectus.
(iiib) Zamba will promptly furnish to Purchaser each Holder such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents any amendments or supplements thereto as Purchaser and any underwriter(s) the Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Common Stock, 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 Shares being sold by the Company;Holder.
(ivc) Zamba will, on or prior to the date on which the Registration Statement is declared effective, use its reasonable best efforts to register or qualify such Registrable Common Stock the Shares covered by the Registration Statement under such other securities or "blue sky laws sky" laws, if any, as may be applicable of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions states of the Registrable Common Stock (providedUnited States as any Holder reasonably requests; PROVIDED, HOWEVER, that the Company will Zamba shall not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself or to taxation in file any such jurisdiction or (3) general consent to general service of process in any such jurisdiction);process.
(vd) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required Zamba will promptly give notice to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, each Holder (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
, (2ii) of any written request by the SEC Commission or any state securities authority with jurisdiction for amendments or and supplements to the Registration Statement or any and Prospectus or of any inquiry by the SEC relating to for additional information after the Registration Statement or the Company’s status as a well-known seasoned issuer;
has become effective, (3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration Statement; and
, (4iv) of the receipt issuance by the Company any state securities commission or other regulatory authority with jurisdiction of any notification with respect to order suspending the suspension of the qualification or exemption from qualification of any Registrable Common Stock for sale of the Shares under the any applicable state securities or "blue sky sky" laws and (v) of the happening of any jurisdiction.
(b) The Company represents and warrants that no event which makes any statement made in the Registration Statement (including or related Prospectus untrue or which requires the making of any amendments changes in the Registration Statement or supplements thereto Prospectus so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. As soon as practicable following any of such events, but in any case not later than the expiration of the period for suspension of disposition of the Shares under Section 1.4, Zamba will prepare and Prospectuses contained therein) shall file with the Commission and furnish such supplement or amendment to such Prospectus as may be necessary so that, as thereafter deliverable to the purchasers of the Shares, such Prospectus will not contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use statement therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf in light of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdictioncircumstances under which they were made, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewmisleading.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with The Company will, subject to the registration and sale of Registrable Common Stock pursuant to this Agreementlimitations provided herein, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(ia) prepare and file with the SEC a Registration Statement with respect the requisite registration statement to effect such Registrable Common Stock registration, and thereafter, use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereaftereffective; and provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (thereto, including any prospectus supplement for a shelf takedown)documents incorporated by reference, the Company will furnish to Purchaser counsel to the Holders of the Registrable Securities covered by such registration statement and the managing underwriter or underwriters, if any, draft copies of all such documents proposed to be filedfiled (other than exhibits, including unless so requested) a reasonable time prior thereto, which documents incorporated by reference in will be subject to the Prospectus and, if requested by Purchaser, the exhibits incorporated by referencereasonable review of such counsel and such Holders and underwriters, and Purchaser (will notify each Holder of the Registrable Securities of any stop order issued by the SEC in connection therewith and the underwriter(s), if any) shall have the opportunity take all reasonable actions required to review and comment thereon, and the Company will make remove such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretostop order;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, registration statement; provided, however, that the Company shall not in any event be required to keep a registration statement filed pursuant to Section 2.1 effective for a period of more than nine months after such registration statement becomes effective; and provided further that the Company may, at any time, delay the filing or suspend the effectiveness of any registration under this Agreement, or without suspending such effectiveness, instruct the Purchasers not to sell any Registrable Securities included in any such registration, (i) if the Company shall have no determined upon the advice of counsel that the Company would be required to disclose any actions taken or proposed to be taken by the Company in good faith and for valid business reasons, including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Company or on such obligation actions, or (ii) if required by law, to update the prospectus relating to any such registration to include updated financial statements (a “Suspension Period”) by providing the Purchasers with written notice of such Suspension Period and the reasons therefore; provided, however, that the Company will not be required to disclose such reasons with particularity if an authorized executive officer of the Company certifies that the Company believes it is required by law to delay the filing or suspend the effectiveness of any such registration. In addition, the Company shall not be required to keep any registration effective, or may without suspending such effectiveness, instruct the Purchasers if it has Registrable Securities included in such registration not to sell such securities, during any period which the Company is instructed, directed, ordered or otherwise requested by any governmental agency or self-regulatory organization to stop or suspend such trading or sales (“Supplemental Extension Period”). In the event of a Suspension Period or Supplemental Extension Period, the period during which any registration under this Agreement is to remain effective pursuant to this Section 3.1(b) shall be tolled until the end of any such Suspension Period or Supplemental Extension Period. The Company will use reasonable efforts to restrict any Suspension Period or Supplemental Extension Period to less than 60 days;
(c) furnish to the Purchasers such number of conformed copies of a final such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus if the conditions of contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 172(c) 424 under the Securities Act are satisfied by Act, and such other documents, as the CompanyPurchasers may reasonably request;
(ivd) use its reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic as each seller thereof shall reasonably request and to keep such registration or foreign) qualification in effect for so long as Purchaser such registration statement remains in effect, and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such seller, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 3.1(d) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction).
(e) use its reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Purchasers to consummate the disposition of such Registrable Securities;
(vf) notify Purchaser and any underwriter(s)in writing the Purchasers, if Registrable Securities are covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, and at the request of Purchaser or any underwriter(s), the Company shall Purchasers prepare and furnish to the Purchasers a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date purchasers of such Registration Statement;
(xi) if requestedsecurities, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of such prospectus shall not include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to light of the Company by or on behalf of Purchaser specifically for use therein)circumstances under which they were made.
(cg) The Company shall otherwise use reasonable efforts to comply with all applicable rules and regulations of the SEC and make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following the resolution or clearance of all SEC comments orreasonably practicable, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue earnings statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend covering the period of time during which at least twelve months beginning with the Company is required to maintain first full calendar month after the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of such registration statement, which earnings statement shall satisfy the giving provisions of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use Section 11(a) of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act;
(h) in connection with any provide and cause to be maintained a transfer agent for all Registrable Securities covered by such registration statement covering from and after a date not later than the effective date of such registration statement; and
(i) use its reasonable efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Company’s Common Stock, without the prior written consent of Purchaser and any underwriterStock is then listed.
Appears in 1 contract
Sources: Subscription Agreement (Lighting Science Group Corp)
Procedures. (a) In connection with The Company will keep the Eligible Holders advised in writing as to the initiation of any registration described in Section 9.1 hereof and sale of Registrable Common Stock pursuant as to this Agreement, the completion thereof. The Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
will (i1) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such the Registration Statement to become effective as soon as practicable thereafterand remain effective within six months of the date on which Company initially proposes to sell shares under Section 9.1(a) hereof or the Investors demand registration under Section 9.1(b) hereof and until all shares covered thereby have been sold; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii2) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith with such registration statement as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such registration statement for the period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(sSection 9.1(b) in connection with each shelf takedown;
above; (iii3) furnish to Purchaser each Eligible Holder, promptly after it is filed with the SEC, such number of copies of such the Registration Statement, Statement filed in accordance with Section 9.1 hereof and of each amendment or supplement to that registration statement, in each case, including exhibits, and supplement thereto, the Company will provide to each Prospectus (including each preliminary Prospectus and Prospectus supplement) and Eligible Holder of which the Company has notice such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition number of copies of the final prospectus included in that registration statement, and each amendment or supplement to it, as are reasonably requested by the Eligible Holder to enable it to sell the Registrable Common StockSecurities that it holds; and (4) cause all Registrable Securities registered pursuant to this Article IX to be listed, providedto the extent they are not already listed, however, that on each securities exchange or automated quotation system on which similar securities issued by 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;then listed.
(ivb) The Company will use its reasonable best efforts to register or qualify such prevent the issuance of any order suspending the effectiveness of a registration statement relating to Registrable Common Stock under such other securities or blue sky laws Securities, and if one is issued, use its best efforts to obtain the withdrawal of any order suspending the effectiveness of such jurisdictions registration statement at the earliest possible moment.
(domestic or foreignc) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the The Company will not be required provide to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by PurchaserEligible Holder, any underwriter participating in any disposition pursuant to a Registration Statementregistration statement relating to Registrable Securities, and any attorney, accountant or other agent or representative retained by Purchaser the Manager or underwriterany such underwriter (collectively, the “Inspectors”), access to all pertinent financial and other records, pertinent corporate documents and properties of the CompanyCompany (collectively, the “Records”) that is reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors, directors and employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent such Inspector in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all registration statement, provided that such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser Eligible Holder and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in Inspector has entered into a customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, confidentiality agreement with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewRecords.
(d) The Company may require Purchaser to furnish to Eligible Holder will, at the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company request of the happening Company, suspend all sales of Registrable Securities during any event period when there has been an event, as a result of which the Prospectus included (Registration Statement, any prospectus or deemed included) prospectus supplement constituting a part thereof, or any document incorporated by reference in such Registration Statement any of the foregoing contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading (misleading, in the light of the circumstances under which they are made or the Company otherwise is in possession of material information that would be required to be included in a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time but that the Company deems it advisable not to exceed 10 days (45 days disclose in a Registration Statement. The Company further agrees that any period in which sales, transfers or dispositions must be suspended as a result of a circumstance referred to in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser preceding sentence shall not exceed ninety (90) 60 days, and shall not exceed 105 days in the aggregate in over any 12 12-month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with Whenever the registration and sale of Stockholders request that any Registrable Common Stock be registered or sold pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s the intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and at least five (5) Business Days before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the Stockholders and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthe Stockholders, the exhibits incorporated by reference, and Purchaser the Stockholders (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser the Stockholders (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, as set forth in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period)Section 2 hereof, or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Stockholders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Stockholders or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser the Stockholders such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser the Stockholders and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable (in light of the Company's status as OTC-Other) to enable Purchaser the Stockholder and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) promptly notify Purchaser the Stockholders and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the Stockholders or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Common Stock, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser the Stockholders or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser the Stockholders and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserthe Stockholders;
(vii) in connection with each any Demand Registration pursuant to Section 3 2 and each Fully Marketed Underwritten Offering requested by Purchaser the Stockholders under Section 22 or 3, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaserthe Stockholders, any underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser the Stockholders or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserthe Stockholders, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed or qualified on NASDAQ, or any each securities exchange on which securities of the same class issued by the Company are then listed or traded or, if no such similar securities are then listedlisted or traded, on Nasdaq or a national securities exchange selected by on which the Company Registrable Common Stock may be listed and agreed to by Purchasertraded;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s 's independent registered public accountants addressed to Purchaser the Stockholders and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;; and
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser the Stockholders and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-pre- effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerProspectus;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser the Stockholders furnished to the Company by or on behalf of Purchaser the Stockholders specifically for use therein).
(c) The Company shall make available to Purchaser the Stockholders (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference thereinStatement, and (ii) such number of copies of each a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Stockholders or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser the Stockholders of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplementamendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, request as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Stockholders to furnish to the Company any other information regarding Purchaser the Stockholders and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser the Stockholder and any underwriterunderwriter 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 Stockholders are parties shall be deemed to satisfy the requirement for such consent.
Appears in 1 contract
Sources: Registration Rights Agreement (Tinicum Capital Partners Ii Lp)
Procedures. (a) In connection with the registration and sale obligations of Registrable Common Stock the Company pursuant to this AgreementArticle II, the Company shall use its all reasonable best efforts to effect or cause to be effected the registration and of the Registrable Securities under the Securities Act to permit the sale of such Registrable Common Stock Securities by the Holders in accordance with Purchaser’s their intended method or methods of disposition thereofdistribution, and pursuant thereto the Company shall as expeditiously as reasonably practicableshall:
(i) prepare and file with the SEC a Registration Statement with respect the SEC which (x) shall be on Form S-3 (or any successor to such form), if available, (y) shall be available for the sale or exchange of the Registrable Common Stock Securities in accordance with the intended method or methods of distribution by the selling Holders thereof, and (z) shall comply as to form with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith and all other information reasonably requested by the lead managing Underwriter or sole Underwriter, if applicable, to be included therein, (ii) use its all reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing remain effective in accordance with Article II, (iii) use all reasonable efforts to not take any action that would cause a Registration Statement to contain a material misstatement or Prospectus omission or any amendments or supplements thereto to be not effective and usable for resale of Registrable Securities during the period that such Registration Statement is required to be effective and usable, and (including any prospectus supplement for a shelf takedown), furnish to Purchaser iv) cause each Registration Statement and the underwriter related Prospectus and any amendment or underwriterssupplement thereto, if anyas of the effective date of such Registration Statement, copies amendment or supplement (x) to comply in all material respects with any requirements of all such documents proposed the Securities Act and the rules and regulations of the SEC and (y) not to contain any untrue statement of a material fact or omit to state a material fact required to be filed, including documents incorporated by reference in stated therein or necessary to make the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretostatements therein not misleading;
(iib) subject to paragraph (j) of this Section 4.1, prepare and file with the SEC such amendments and supplements post-effective amendments to each such Registration Statement and the Prospectus used in connection therewith Statement, as may be necessary to keep such Registration Statement effective for a period of not less than 90 daysthe applicable period; cause each such Prospectus to be supplemented by any required prospectus supplement, in and as so supplemented to be filed pursuant to Rule 424 under the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such each Registration Statement during such the applicable period in accordance with the intended method or methods of disposition distribution by Purchaser thereof the selling Holders thereof, as set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownregistration statement;
(iiic) furnish to Purchaser such number each Holder of Registrable Securities and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of such Registration Statementeach Prospectus, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus Prospectus, and Prospectus supplement) any amendment or supplement thereto and such other documents as Purchaser and any underwriter(s) such Holder or Underwriter may reasonably request in order to facilitate the public sale or other disposition of the Registrable Common StockSecurities; the Company hereby consents to the use of the Prospectus, including each preliminary Prospectus, by each Holder of Registrable Securities and each Underwriter of an Underwritten Offering of Registrable Securities, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or the preliminary Prospectus;
(d) (i) use all reasonable efforts to register or qualify the Registrable Securities, no later than the time the applicable Registration Statement is declared effective by the SEC, under all applicable state securities or "blue sky" laws of such jurisdictions as each Underwriter, if any, or any Holder of Registrable Securities covered by a Registration Statement, shall reasonably request; (ii) use all reasonable efforts to keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective; and (iii) do any and all other acts and things which may be reasonably necessary or advisable to enable each such Underwriter, if any, and Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder; 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required obligated to (1) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction where in which it would is not otherwise so qualified or to consent to be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith) in any such jurisdiction);
(ve) notify Purchaser and any underwriter(s)each Holder of Registrable Securities promptly, at any time and, if requested by such Holder, confirm such advice in writing, (i) when a Prospectus relating Registration Statement has become effective and when any post-effective amendments and supplements thereto become effective, (ii) of the issuance by the SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iii) if, between the effective date of a Registration Statement and the closing of any sale of securities covered thereby pursuant to any agreement to which the Company is required a party, the representations and warranties of the Company contained in such agreement cease to be delivered under true and correct in all material respects or if the Securities Act, Company receives any notification with respect to the suspension of the occurrence qualification of the Registrable Securities for sale in any jurisdiction or the initiation of any proceeding for such purpose, and (iv) of the happening of any event during the period a Registration Statement is effective as a result of which any such Registration Statement or the related Prospectus contains an any untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(vif) in furnish counsel for each such Underwriter, if any, and for the case Holders of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser Registrable Securities copies of any request by the SEC or the underwriter(s) reasonably request in order any state securities authority for amendments or supplements to expedite a Registration Statement and Prospectus or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserfor additional information;
(viig) in connection with each Demand use all reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration pursuant Statement at the earliest possible time;
(h) upon request, furnish to Section 3 and each Fully Marketed the sole Underwriter or lead managing Underwriter of an Underwritten Offering requested of Registrable Securities, if any, without charge, at least one signed copy of each Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by Purchaser under Section 2reference and all exhibits; and furnish to each Holder of Registrable Securities, cause there to occur Full Cooperation andwithout charge, in all other casesat least one conformed copy of each Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasersunless requested);
(viiii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, cooperate with the selling Holders of Registrable Securities and any attorney, accountant the sole Underwriter or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case lead managing Underwriter of an underwritten offering, at the time of closing of the sale Underwritten Offering of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriterSecurities, if any, stating that to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such accountants are independent public accountants within Registrable Securities to be in such denominations (consistent with the meaning provisions of the Securities Act governing documents thereof) and registered in such names as the applicable rules and regulations adopted by selling Holders or the SEC thereundersole Underwriter or lead managing Underwriter of an Underwritten Offering of Registrable Securities, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters if any, may reasonably request at least three Business Days prior to any sale of the independent registered public accountants delivered in connection with primary underwritten public offeringsRegistrable Securities;
(xiij) make generally available to Purchaser and its Affiliates a consolidated earnings statement upon the occurrence of any event contemplated by paragraph (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(ae)(iv) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwritersthis Section, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus use all reasonable efforts to prepare a supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the a Registration Statement or the Company’s status related Prospectus, or any document incorporated therein by reference, or file any other required document so that, as a well-known seasoned issuer;
(3) thereafter delivered to the purchasers of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading misleading;
(except that k) enter into customary agreements (including, in the Company makes no representation or warranty case of an Underwritten Offering, underwriting agreements in customary form, and including provisions with respect to information indemnification and contribution in customary form and consistent with the provisions relating to Purchaser furnished indemnification and contribution contained herein) and take all other customary and appropriate actions in order to expedite or facilitate the disposition of such Registrable Securities and in connection therewith:
(1) make such representations and warranties to the Holders of such Registrable Securities and the Underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in similar underwritten offerings;
(2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the lead managing Underwriter, if any, or, if no Underwriter, the majority Holders of the Registrable Securities being sold) addressed to each selling Holder and the Underwriters, if any, covering the matters customarily covered in opinions requested in sales of securities or underwritten offerings and such other matters as may be reasonably requested by or on behalf of Purchaser specifically for use therein).such Holders and Underwriters;
(c3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling Holders of Registrable Securities, if permissible, and the Underwriters, if any, which letters shall be customary in form and shall cover matters of the type customarily covered in "cold comfort" letters to underwriters in connection with primary underwritten offerings;
(4) to the extent requested and customary for the relevant transaction, enter into a securities sales agreement with the Holders providing for, among other things, the appointment of such representative as agent for the selling Holders for the purpose of soliciting purchases of Registrable Securities, which agreement shall be customary in form, substance and scope and shall contain customary representations, warranties and covenants not more onerous than those provided in the relevant underwriting agreement(s), if any; and
(5) deliver such customary documents and certificates as may be reasonably requested by the majority Holders of the Registrable Securities being sold or by the managing Underwriters, if any. The Company above shall make available to Purchaser be done (i) promptly after at the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy effectiveness of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to (and each post-effective amendment thereto) in connection with any of the documents incorporated by reference thereinregistration, and (ii) such number of copies of at each Prospectus, including a preliminary Prospectus, closing under any underwriting or similar agreement as and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.extent required thereunder;
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed includedl) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain register the applicable Registration Statements effective sale or disposition of any Registrable Notes pursuant to a Registration Statement required by this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any eventAgreement, the Company shall (i) cause the Indenture (as defined below) to be qualified under the TIA not later than the effective date of such Registration Statement and, in connection therewith, cooperate with the Trustee (as defined below) and the Holders to effect such changes to the Indenture as may be entitled required for such Indenture to deliver more than be so qualified in accordance with the terms of the TIA and (ii) execute, and use all reasonable efforts to cause the Trustee to execute, all documents that may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodtimely manner.
(fm) The make available for inspection by representatives of the Holders of the Registrable Securities and any Underwriters participating in any disposition pursuant to a Registration Statement and any counsel or accountant retained by such Holders or Underwriters, all relevant financial and other records, pertinent corporate documents and properties of the Company shall not permit any officerand cause the respective officers, director, underwriter, broker or any other person acting on behalf directors and employees of the Company to use supply all information reasonably requested by any free writing prospectus (as defined in Rule 405 under the Securities Act) such representative, Underwriter, counsel or accountant in connection with a Registration Statement;
(n) (i) within a reasonable time prior to the filing of any registration statement covering Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus, provide copies of such document to the Holders of Registrable Common StockSecurities and to counsel to such Holders and to the Underwriter or Underwriters of an Underwritten Offering of Registrable Securities, without if any; fairly consider such reasonable changes in any such document prior to or after the prior written consent filing thereof as the counsel to the Holders or the Underwriter or the Underwriters may request and not file any such document in a form to which the majority Holders of Purchaser Registrable Securities being registered or any Underwriter shall reasonably object; and make such of the representatives of the Company as shall be reasonably requested by the Holders of Registrable Securities being registered or any underwriter.Underwriter available for discussion of such document;
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall Parent will use its best reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Shares in accordance with Purchaser’s the intended methods method of disposition thereof, and pursuant thereto the Company shall Parent will as expeditiously as reasonably practicablepossible:
(i) 2.1 prepare and file with the SEC a the Shelf Registration Statement with respect to such Registrable Common Stock Shares and use its reasonable best efforts to cause such the Shelf Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference remain effective in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoaccordance with Section 1;
(ii) 2.2 prepare and file with the SEC such amendments amendments, post-effective amendments, and supplements to such the Shelf Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such the Shelf Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Effectiveness Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Shares covered by such the Shelf Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Major Stockholders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) 2.3 furnish to Purchaser each Major Stockholder selling Registrable Shares and the underwriters of the Registrable Shares being registered such number of copies of such the Shelf Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) the prospectus included in the Shelf Registration Statement, any documents incorporated by reference therein and such other documents as Purchaser and any underwriter(s) such Major Stockholder or underwriters may reasonably request in order to facilitate the disposition of the Registrable Common StockShares owned by such Major Stockholder or the sale of such securities by such underwriters (it being understood that, provided, however, that subject to Section 3 and the Company shall have no such obligation to furnish copies requirements of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied and applicable state securities laws, Parent consents to the use of the prospectus and any amendment or supplement thereto by each Major Stockholder and the underwriters in connection with the offering and sale of the Registrable Shares covered by the CompanyShelf Registration Statement of which such prospectus, amendment or supplement is a part);
(iv) 2.4 use its reasonable best efforts to register or qualify such Registrable Common Stock Shares under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) the managing underwriter reasonably requests (or, in the event the Shelf Registration Statement does not relate to an underwritten offering, as the Major Stockholders may reasonably request); use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period; and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) the Major Stockholders to consummate the disposition of the Registrable Shares owned by the Major Stockholders in such jurisdictions of the Registrable Common Stock (provided, however, that the Company Parent will not be required to (1A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3B) consent to general service of process in any such jurisdiction);
2.5 promptly notify each Major Stockholder selling its Registrable Shares and each underwriter and (vif requested by any such Person) notify Purchaser and any underwriter(s), at any time confirm such notice in writing (A) when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser prospectus or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Shelf Registration Statement or any post-effective amendment, when the same has become effective;
, (2B) of the issuance by any written request by state securities or other regulatory authority of any order suspending the SEC qualification or exemption from qualification of any of the Registrable Shares under state securities or “blue sky” laws or the initiation of any proceedings for amendments or supplements to that purpose, and (C) of the happening of any event which makes any statement made in the Shelf Registration Statement or any Prospectus related prospectus untrue or which requires the making of any inquiry by changes in the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Shelf Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities , prospectus or blue sky laws of any jurisdiction.
(b) The Company represents and warrants documents so that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall they will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) misleading, and, as promptly after the same is prepared as practicable thereafter, prepare and publicly distributed, filed file with the SEC, or received by the Company, one copy of each Registration Statement SEC and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including furnish a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryprospectus so that, as soon as practicable following thereafter deliverable to the resolution or clearance purchasers of all SEC comments orsuch Registrable Shares, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto prospectus will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company contain any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any omit a material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading misleading;
2.6 make generally available to Parent’s securityholders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than thirty (30) days after the end of the twelve (12) month period beginning with the first day of Parent’s first fiscal quarter commencing after the effective date of the Shelf Registration Statement, which earnings statement shall cover said twelve (12) month period, and which requirement will be deemed to be satisfied if Parent timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
2.7 if requested by the managing underwriter or any Major Stockholder selling Registrable Shares, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or such Major Stockholder reasonably requests to be included therein, including, without limitation, with respect to the Registrable Shares being sold by such Major Stockholder, the purchase price being paid therefor by the underwriters and any other terms of the underwritten offering of the Registrable Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
2.8 cooperate with each Major Stockholder and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing Registrable Shares sold under the Shelf Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Major Stockholder may request and keep available and make available to Parent’s transfer agent prior to the effectiveness of the Shelf Registration Statement a supply of such certificates;
2.9 promptly make available for inspection by any Major Stockholder, any underwriter participating in any disposition pursuant to the Shelf Registration Statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the “Suspension NoticeInspectors”), Purchaser will forthwith discontinue disposition all financial and other records, pertinent corporate documents and properties of Registrable Common Stock Parent (collectively, the “Records”), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause Parent’s officers, directors and employees to supply all information requested by any such Inspector in connection with the Shelf Registration Statement; provided, however, that, unless the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the Shelf Registration Statement or the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, Parent shall not be required to provide any information under this Subsection 2.9 if (A) Parent believes, after consultation with counsel for Parent, that to do so would cause Parent to forfeit an attorney-client privilege that was applicable to such information or (B) if either (1) Parent has requested and been granted from the SEC confidential treatment of such information contained in any filing with the SEC or documents provided supplementally or otherwise or (2) Parent reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing, unless prior to furnishing any such information with respect to (A) or (B) such Major Stockholder requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, further, that each Major Stockholder agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to Parent and allow Parent, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
2.10 furnish to each Major Stockholder and underwriter a signed counterpart of (A) an opinion or opinions of counsel to Parent and (B) a comfort letter or comfort letters from Parent’s independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as such Major Stockholder or managing underwriter reasonably requests;
2.11 cause the Registrable Shares included in the Shelf Registration Statement for a reasonable length of time not to exceed 10 days (45 days be listed on each securities exchange or automated quotation system on which similar securities issued by Parent are then listed;
2.12 in the case of an event described in Section 3(d)underwritten offering, cause such Parent executive or executives as the managing underwriter may reasonably request (including, if so requested Parent’s chief executive officer and chief financial officer) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed to attend any analyst and is furnished investment presentations, including “roadshows,” for up to three business days;
2.13 cooperate with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days each Major Stockholder and each underwriter participating in the aggregate disposition of such Registrable Shares and their respective counsel in connection with any 12 month period. If filings required to be made with the Company shall give Purchaser any Suspension NoticeNational Association of Securities Dealers, the Company shall extend Inc. (“NASD”);
2.14 during the period of time during which when the Company prospectus is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 delivered under the Securities Act, promptly file all documents required to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
2.15 notify each Major Stockholder promptly of any request by the SEC for the amending or supplementing of the Shelf Registration Statement or prospectus or for additional information;
2.16 prepare and file with the SEC promptly any amendments or supplements to the Shelf Registration Statement or prospectus which, in the opinion of counsel for Parent or the managing underwriter, is required in connection with the distribution of the Registrable Shares;
2.17 enter into such agreements (including underwriting agreements) as are customary in connection with an underwritten registration; and
2.18 advise each Major Stockholder of such Registrable Shares, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any registration statement covering Registrable Common Stock, without stop order by the prior written consent SEC suspending the effectiveness of Purchaser the Shelf Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any underwriterstop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
Appears in 1 contract
Sources: Registration Rights Agreement (Inet Technologies Inc)
Procedures. (a) In connection with If and whenever the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts Registrant is required to effect the registration and of any Registrable Securities under the sale of such Registrable Common Stock Securities Act as provided in accordance with Purchaser’s intended methods of disposition thereofARTICLE II, and pursuant thereto the Company Registrant shall as expeditiously as reasonably practicablepossible:
(ia) in the case of a registration of Registrable Securities pursuant to Section 2.1(a), promptly prepare and as soon thereafter as is reasonably practicable, but no later than 90 days following the date of the IPO Notice, file with the SEC a Commission the requisite Registration Statement with respect to effect such Registrable Common Stock registration and use its reasonable best efforts to cause such Registration Statement to become effective as soon promptly as practicable thereafterafter the filing thereof; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies provided that all holders of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) Registrable Securities being registered thereby shall have the a reasonable opportunity to review and comment thereonon such Registration Statement prior to the filing thereof with the Commission, and provided that the Company will Registrant shall make all changes thereto that any such holder may request in writing to the extent that such changes and additions thereto as reasonably requested are required, in the judgment of the Registrant, by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoSecurities Act;
(iib) in the case of a registration of Registrable Securities pursuant to Section 2.1(b), promptly prepare and as soon thereafter as is reasonably practicable, but no later than 90 days following the date of the Demand Notice, file with the Commission the requisite Registration Statement to effect such registration and thereafter use its reasonable best efforts to cause such Registration Statement to become effective as promptly as practicable after the filing thereof; provided that all holders of Registrable Securities being registered thereby shall have a reasonable opportunity to review and comment on such Registration Statement prior to the filing thereof with the Commission, and provided that the Registrant shall make all changes thereto that any such holder may request in writing to the extent that such changes are required, in the judgment of the Registrant, by the Securities Act;
(c) prepare and file with the SEC Commission such amendments (including post-effective 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 a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods method of disposition by Purchaser thereof set forth in such Registration Statement and, in registration statement or 90 days after the case effective date of the Shelf Registration Statementregistration statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(swhichever is shorter (but not before the expiration of the applicable period referred to in Section 4(3) in connection with each shelf takedownof the Securities Act and Rule 174 thereunder);
(iiid) furnish without charge to Purchaser each seller of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto, such number of copies of the prospectus contained in such Registration Statement, each amendment and supplement thereto, each Prospectus registration statement (including each preliminary Prospectus prospectus and Prospectus supplementany summary prospectus) and any other prospectus filed under Rule 424, Rule 430A or Rule 464 under the Securities Act, conforming with the requirements of the Securities Act and such other documents as Purchaser and any underwriter(s) such seller of Registrable Securities may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Companyrequest;
(ive) use its reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic in the United States as each seller of Registrable Securities shall reasonably request, keep such registration or foreign) qualification in effect for so long as Purchaser such registration statement remains in effect and take any underwriter(s) reasonably requests and do any and all other acts and things action that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller of Registrable Securities to consummate the disposition in such jurisdictions of the securities owned by such seller of Registrable Common Stock (providedSecurities, except that the Company will Registrant shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation or other entity in any jurisdiction where wherein it would not otherwise be required to qualify not, but for the requirements of this subparagraph (iv)Section 3.1, (2) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction);
(f) furnish to each seller of Registrable Securities and the underwriters (if applicable) a signed copy, addressed to such seller, except as provided in Section 3.1 below, and the underwriters, of
(i) an opinion of outside counsel for the Registrant, dated the effective date of such registration statement (or, if such registration involves an underwritten public offering, dated the date of the closing under the underwriting agreement), reasonably satisfactory in form, scope and substance to the sellers of Registrable Securities and the underwriters, and
(ii) a "comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified the Registrant's financial statements included in such registration statement, addressed to the underwriters and, to the extent the same can be reasonably obtained, to each seller, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants' letters delivered to underwriters in underwritten public offerings of securities and such other financial, tabular and statistical matters as are typically covered in such a "comfort" letter as the underwriters may reasonably request;
(g) immediately notify each seller of Registrable Securities covered by such registration statement, and (if requested by any such Person) confirm such notice in writing, (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, and, with respect to a registration statement or any post-effective amendment, when the same has become effective under the Securities Act and each applicable state law, (ii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to a registration statement or related prospectus or for additional information, (iii) if at any time any of the representations or warranties of the Registrant contained in any agreement (including any underwriting agreement) contemplated by Section 3.1(1) or Section 3.2 below ceases to be true and correct in any material respect, (iv) of the receipt by the Registrant of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose, (v) notify Purchaser of the Registrant's reasonable determination that a post-effective amendment to a registration statement would be appropriate and any underwriter(s), (vi) at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus contains which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, in any such event, at the request of Purchaser any such seller or any underwriter(s), the Company shall holder of Registrable Securities promptly prepare and furnish to such seller or holder of Registrable Securities a reasonable number of copies of a supplement to or an amendment of such prospectus, and use its best efforts to cause any such Prospectus amendment, if a post-effective amendment, to promptly be declared effective, as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date purchasers of such Registration Statement;
(xi) if requestedsecurities, cause to be deliveredsuch prospectus, immediately prior to the pricing of any underwritten offeringas amended or supplemented, immediately prior to effectiveness of each Registration Statement (and, in the case of shall not include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to light of the Company by or on behalf of Purchaser specifically for use therein).circumstances under which they were made;
(ch) The Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make available to Purchaser its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least 12 months, but not more than 18 months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(i) promptly after in the same is prepared and publicly distributed, filed with event of the SECissuance or threatened issuance of any stop order suspending the effectiveness of a Registration Statement, or received by any order suspending or preventing the Company, one copy use of each any related prospectus or suspending the qualification of any Registrable Securities included in such Registration Statement for sale in any jurisdiction, promptly notify each holder of Registrable Securities of the issuance or threatened issuance of such order and use its reasonable best efforts promptly to prevent the entry of such order or obtain the withdrawal of such order if issued;
(j) use its reasonable best efforts to cause such Registrable Securities covered by such Registration Statement to be registered with or approved by such other United States governmental agencies or authorities as may be necessary to enable the holders thereof to consummate the disposition of such Registrable Securities;
(k) make reasonably available for any holder of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement, and any amendment theretoattorney, each preliminary Prospectus accountant or other agent retained by any such holder or underwriter (collectively, the "Inspectors"), all relevant financial and Prospectus other records, corporate documents and each amendment or supplement thereto, each letter written by or on behalf properties of the Company to Registrant (collectively, the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange"Records"), and each item of correspondence from cause the SEC or the staff officers, members of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including Board of Directors and employees of the Registrant to supply all information reasonably requested by any domestic or foreign securities exchange)such Inspector in connection with such Registration Statement prior to its effectiveness, in each case relating to the extent that such Records and Information are pertinent to the information disclosed in the Registration Statement; provided, that each such Inspector shall execute and deliver to the Registrant a Confidentiality Agreement in form reasonably satisfactory to the Registrant. Records which the Registrant determines, in good faith, to be confidential and which the Registrant notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a material misstatement or material omission in the Registration Statement or to any of the documents incorporated by reference therein, and (ii) the release of such number Records is ordered pursuant to a subpoena or other order from a court of copies competent jurisdiction. Each holder of each ProspectusRegistrable Securities agrees that it will, including upon learning that disclosure of such Records is sought in a preliminary Prospectuscourt of competent jurisdiction, give notice to the Registrant and allow the Registrant, at the Registrant's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(l) enter into such customary agreements (including, without limitation, underwriting agreements in customary form, substance and scope) and take all amendments and supplements thereto and such other documents actions as Purchaser the holders of the Registrable Securities being sold or any underwriter may the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of the such Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewSecurities.
(dm) The Company may require Purchaser use its reasonable best efforts to furnish to the Company any other information regarding Purchaser and the distribution of cause all such securities as the Company reasonably determines, based on the advice of counsel, is required Registrable Securities to be included in any Registration Statement.
(e) Purchaser agrees thatlisted or quoted on a securities exchange, automated quotation system or over-the-counter market upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”)Global requests, Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described IPO, or, in Section 3(d)) until Purchaser is advised in writing any other case, upon which similar securities issued by the Company that Registrant are then listed or quoted;
(n) cooperate with the use holders of Registrable Securities being sold and the managing underwriter or underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, which certificates shall not bear any restrictive legends and shall be in a form eligible for deposit with The Depository Trust Company; and enable such Registrable Securities to be registered in such names as the managing underwriter or underwriters may request at least one (1) business day prior to the sale of Registrable Securities;
(o) cooperate and assist in any filing required to be made with the National Association of Securities Dealers, Inc. and the performance of any due diligence investigation by any underwriter, including any "qualified independent underwriter," or any holder of Registrable Securities being sold; and
(p) cooperate with the marketing and sale of securities in accordance with this Agreement including, without limitation, providing reasonable marketing support and causing appropriate member(s) of management of the Prospectus may Registrant to be resumed reasonably available to participate in "road show" presentations and is furnished attend meetings with a supplemented underwriters as reasonably requested by Global or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodunderwriters.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (Weatherford International Inc /New/)
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall is required to use its reasonable best efforts to effect the registration of any Registrable Securities under the Securities Act as provided in Sections 2 and 3 hereof, the sale Company will, subject to the limitations provided herein, as expeditiously as possible:
(a) prepare and (as soon as possible or in any event no later than 90 days after the end of the period within which requests for registration may be given to the Company or such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto longer period as the Company shall as expeditiously as reasonably practicable:
(iin good faith require to produce the financial statements required in connection with such registration) prepare and file with the SEC a Registration Statement with respect the requisite registration statement to effect such Registrable Common Stock registration, and thereafter, use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereaftereffective; and before filing a Registration Statement or Prospectus or provided that the Company may discontinue any amendments or supplements thereto registration of its securities which are not Registrable Securities (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserunder the circumstances specified in Section 3. 1 hereof, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if anyits securities which are Registrable Securities) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) at any time prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement the effective date of the registration statement relating thereto;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, registration statement; provided, however, that the Company shall not in any event be required to keep the registration statement effective for a period of more than three months after such registration statement becomes effective; and provided further that the Company may, at any time, delay the filing or suspend the effectiveness of any registration under this Agreement, or without suspending such effectiveness, instruct the Purchasers not to sell any Registrable Securities included in any such registration, (i) if the Company shall have no determined upon the advice of counsel that the Company would be required to disclose any actions taken or proposed to be taken by the Company in good faith and for valid business reasons, including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Company or on such obligation actions, or (ii) if required by law, to update the prospectus relating to any such registration to include updated financial statements (a "Suspension Period") by providing the Purchasers with written notice of such Suspension Period and the reasons therefor; provided, however, that the Company will not be required to disclose such reasons with particularity if an authorized executive officer of the Company certifies that the Company believes it is required by law to delay the filing or suspend the effectiveness of any such registration. In addition, the Company shall not be required to keep any registration effective, or may without suspending such effectiveness, instruct the Purchasers if it has Registrable Securities included in such registration not to sell such securities, during any period which the Company is instructed, directed, ordered or otherwise requested by any governmental agency or self-regulatory organization to stop or suspend such trading or sales ("Supplemental Extension Period"). In the event of a Suspension Period or Supplemental Extension Period, the period during which any registration under this Agreement is to remain effective pursuant to this Section 4.1(b) shall be tolled until the end of any such Suspension Period or Supplemental Extension Period. The Company will use reasonable efforts to restrict any Suspension Period or Supplemental Extension Period to less than 30 days;
(c) furnish to the Purchasers such number of conformed copies of a final such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus if the conditions of contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 172(c) 424 under the Securities Act are satisfied by Act, and such other documents, as the CompanyPurchasers may reasonably request;
(ivd) use its reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions as each seller thereof shall reasonably request and to keep such registration or qualification in effect for so long as such registration statement remains in effect (domestic provided, however, that the Company shall not in any event be required to keep such registration or foreign) as Purchaser qualification in effect for a period of more than three months after such registration or qualification becomes effective), and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such seller, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 4.1(d) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction).
(e) use its reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Purchasers to consummate the disposition of such Registrable Securities;
(vf) notify Purchaser and any underwriter(s)the Purchasers, if Registrable Securities are covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the fight of the circumstances under which they were made, and, and at the request of Purchaser or any underwriter(s), the Company shall Purchasers prepare and furnish to the Purchasers a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date purchasers of such Registration Statement;
(xi) if requestedsecurities, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of such prospectus shall not include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to light of the Company by or on behalf of Purchaser specifically for use therein)circumstances under which they were made.
(cg) The Company shall otherwise use reasonable efforts to comply with all applicable rules and regulations of the SEC and make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following the resolution or clearance of all SEC comments orreasonably practicable, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue earnings statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend covering the period of time during which at least twelve months beginning with the Company is required to maintain first calendar month after the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of such registration statement, which earnings statement shall satisfy the giving provisions of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use Section 11(a) of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act;
(h) in connection with any provide and cause to be maintained a transfer agent for all Registrable Securities covered by such registration statement covering from and after a date not later than the effective date of such registration statement; and
(i) use its reasonable efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Company's Common Stock, without the prior written consent of Purchaser and any underwriterStock is then listed.
Appears in 1 contract
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall is required to use its reasonable best efforts to effect or cause the registration and of any Registrable Securities under the sale of such Registrable Common Stock Securities Act as provided in accordance with Purchaser’s intended methods of disposition thereofthis Agreement, and pursuant thereto the Company shall will, as expeditiously as reasonably practicablepossible:
(i) prepare and and, in any event within ninety (90) days after the end of the period within which a request for registration may be given to the Company pursuant to Article II or III, file with the SEC a Registration Statement registration statement with respect to such Registrable Common Stock Securities and use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon promptly as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)practicable, furnish to Purchaser and the underwriter or underwritersprovided, if anyhowever, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and that the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) may discontinue any registration of its securities which is being effected pursuant to Article II at any time prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement the effective date of the registration statement relating thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period not in excess of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period 180 days and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC thereunder with respect to the disposition of all securities covered by such Registration Statement registration statement during such period in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement andregistration statement; provided that before filing a registration statement or prospectus, in or any amendments or supplements thereto, the case Company will furnish to counsel selected pursuant to Article VII hereof by the Holders of the Shelf Registration StatementRegistrable Securities covered by such registration statement to represent such Holders, prepare copies of all documents proposed to be filed, which documents will be subject to the review of such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedowncounsel;
(iii) furnish to Purchaser each seller of such Registrable Securities such number of copies of such Registration Statement, registration statement and of each amendment and supplement theretothereto (in each case including all exhibits filed therewith, each Prospectus including any documents incorporated by reference), such number of copies of the prospectus included in such registration statement (including each preliminary Prospectus prospectus and Prospectus supplement) summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as Purchaser and any underwriter(s) such seller may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no Securities by such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Companyseller;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities covered by such registration under such other securities or blue sky laws of in such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) each seller shall reasonably requests request, and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedSecurities owned by such seller, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise be required to qualify where, but for the requirements of this subparagraph subclause (iv), (2) it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction or (3) to consent to general service of process in any such jurisdiction);
(v) use its reasonable best efforts to cause such Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities;
(vi) notify Purchaser and each seller of any underwriter(s)such Registrable Securities covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities ActAct within the appropriate period mentioned in subclause (ii) of this Section 4.1(a), of the occurrence of any event Company's becoming aware that the prospectus included in such registration statement, as a result of which any Prospectus contains then in effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing, and, and at the request of Purchaser or any underwriter(s)such seller, the Company shall prepare a supplement or amendment and furnish to such Prospectus seller a reasonable number of copies of an amended or supplemental prospectus as may be necessary so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances then existing;
(vivii) in use its reasonable best efforts to comply with all applicable rules and regulations of the case SEC, and make available to its security holders, as soon as reasonably practicable (but not more than eighteen months) after the effective date of the registration statement, an underwritten offering, earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;
(iviii) (A) use its reasonable best efforts to list such Registrable Securities on any securities exchange on which the Common Stock is then listed if such Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange; and (B) use its reasonable best efforts to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement not later than the effective date of such registration statement;
(ix) enter into such customary agreements (including an underwriting agreements agreement in customary form), (ii) which may include indemnification provisions in favor of underwriters and other persons in addition to, or in substitution for the provisions of Article V hereof, and take all such other actions as Purchaser sellers of a majority of shares of such Registrable Securities or the underwriter(s) underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and PurchaserSecurities;
(viix) obtain a "cold comfort" letter or letters from the Company's independent public accounts in connection with each Demand Registration pursuant to Section 3 customary form and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management covering matters of the Company to be available to participate in, and to cooperate with type customarily covered by "cold comfort" letters as the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers)seller or sellers of a majority of shares of such Registrable Securities shall reasonably request;
(viiixi) make available for inspection by Purchaserany seller of such Registrable Securities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to a Registration Statement, such registration statement and by any attorney, accountant or other agent retained by Purchaser any such seller or any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company’s 's officers, directors, directors and employees and independent accountants to supply all information reasonably requested by Purchaserany such seller, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offeringsregistration statement;
(xii) make generally available notify counsel (selected pursuant to Purchaser and its Affiliates a consolidated earnings statement (which need not be auditedArticle VII hereof) for the 12 months beginning after the effective date Holders of a Registration Statement as soon as reasonably practicable after the end of Registrable Securities included in such period, which earnings registration statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the managing underwriter or underwritersagent, if any:
immediately, and confirm the notice in writing (1i) when the Registration Statementregistration statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed andregistration statement, with respect shall have become effective, or any supplement to the Registration Statement prospectus or any post-effective amendmentamendment prospectus shall have been filed, when (ii) of the same has become effective;
receipt of any comments from the SEC, (2iii) of any written request by of the SEC to amend the registration statement or amend or supplement the prospectus or for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
additional information, and (3iv) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company registration statement or of any notification with respect to order preventing or suspending the use of any preliminary prospectus, or of the suspension of the qualification of the registration statement for offering or sale in any jurisdiction, or of the institution or threatening of any proceedings for any of such purposes;
(xiii) make every reasonable effort to prevent the issuance of any stop order suspending the effectiveness of the registration statement or of any order preventing or suspending the use of any preliminary prospectus and, if any such order is issued, to obtain the withdrawal of any such order at the earliest possible moment;
(xiv) if requested by the managing underwriter or agent or any Holder of Registrable Common Stock for sale Securities covered by the registration statement, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or agent or such Holder reasonably requests to be included therein, including, without limitation, with respect to the number of Registrable Securities being sold by such Holder to such underwriter or agent, the purchase price being paid therefor by such underwriter or agent and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters incorporated in such prospectus supplement or post-effective amendment;
(xv) cooperate with the Holders of Registrable Securities covered by the registration statement and the managing underwriter or agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the applicable registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or blue sky laws agent, if any, or such Holders may request;
(xvi) obtain for delivery to the Holders of Registrable Securities being registered and to the underwriter or agent an opinion or opinions from counsel for the Company in customary form and in form, substance and scope reasonably satisfactory to such Holders, underwriters or agents and their counsel;
(xvii) cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any jurisdictionfilings required to be made with the NASD; and
(xviii) cause management of the Company to participate in investor "road shows" and other investor efforts or meetings.
(b) The Company represents and warrants that no Registration Statement (including may require each seller of Registrable Securities as to which any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit registration is being effected to state a material fact required to be stated therein, or necessary to make the statements therein not misleading (except that furnish the Company makes no representation or warranty with respect such information regarding such seller and pertinent to information the disclosure requirements relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser registration and the distribution of such securities as the Company may from time to time reasonably determines, based on the advice of counsel, is required to be included request in any Registration Statementwriting.
(ec) Purchaser Each Holder of Registrable Securities agrees that, upon receipt of any notice from the Company of the happening of any event as a result of which the Prospectus included kind described in subclause (or deemed includedvi) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading this
Section 4.1 (a “Suspension Notice”a), Purchaser such Holder will forthwith discontinue disposition of Registrable Common Stock Securities pursuant to the registration statement covering such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) Registrable Securities until Purchaser is advised in writing by the Company that the use such Holder's receipt of the Prospectus may be resumed and is furnished with a copies of the supplemented or amended Prospectus as prospectus contemplated by subclause (vi) of this Section 8(a4.1(a), and, if so directed by the Company, such Holder will deliver to the Company (at the Company's expense) hereof; providedall copies, howeverother than permanent file copies then in such Holder's possession, that of the prospectus covering such postponement Registrable Securities current at the time of sales receipt of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in such notice. In the aggregate in any 12 month period. If event the Company shall give Purchaser any Suspension Noticesuch notice, the Company period mentioned in subclause (ii) of this Section 4.1(a) shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement be extended by the number of days during the period from and including the date of the giving of such Suspension Notice notice pursuant to subclause (vi) of this Section 4.1(a) and including the date Purchaser either is advised when each seller of Registrable Securities covered by the Company that the use of the Prospectus may be resumed or receives such registration statement shall have received the copies of the supplemented or amended Prospectus prospectus contemplated by subclause (vi) of this Section 8(a) (a “Blackout Period”4.1(a). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (Westborn Service Center, Inc.)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this AgreementShelf Registration Statement, the Company shall shall:
(i) use its reasonable best efforts to effect the such registration and to permit the sale of such Registrable Common Stock the Shares being sold in accordance with Purchaser’s the intended method or methods of disposition thereofdistribution thereof (as indicated in the information furnished to the Company pursuant to Section 3(b) hereof), and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) will prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of Commission a Shelf Registration Statement (plusrelating to the registration on any appropriate form under the Act, in each case, which form shall be available for the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution sale of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period Shares in accordance with the intended method or methods of disposition by Purchaser distribution thereof set forth (including, without limitation, one or more underwritten offerings) within the time periods and otherwise in such Registration Statement and, accordance with the provisions hereof. The Company shall not be permitted to include in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or Statement any underwriter(s) in connection with each shelf takedownsecurities other than the Shares;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(ivii) use its reasonable best efforts to register or qualify keep such Registrable Common Stock under such other securities or blue sky laws Shelf Registration Statement continuously effective and provide all requisite financial statements for the period specified in Section 3 of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of Agreement. Upon the occurrence of any event as a result of which that would cause any such Shelf Registration Statement or the Prospectus contains an untrue statement of a material fact or omits any material fact necessary contained therein (i) to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), misleading or (ii) take all not to be effective and usable for resale of the Shares during the period required by this Agreement, the Company shall file promptly (A) an appropriate amendment to such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of Shelf Registration Statement curing such Registrable Common Stock (includingdefect, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other casesif Commission review is required, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock amendment to be listed on NASDAQdeclared effective as soon as practicable, (B) a supplement pursuant to Rule 424 under the Act curing such defect or any exchange on which securities of the same class issued (C) an Exchange Act report incorporated by the Company are then listed or, if no reference curing such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaserdefect;
(xiii) provide prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period set forth in Section 3 hereof, cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the Act in a transfer agent timely manner; and registrar for comply with the provisions of the Act with respect to the disposition of all Shares covered by such Registrable Common Stock not later than Shelf Registration Statement during the effective date applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Shelf Registration StatementStatement or supplement to the Prospectus;
(xiiv) if requested, cause to be delivered, immediately prior to advise the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (Holders promptly and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted requested by the SEC thereunderHolders, and otherwise confirm such advice in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
writing, (xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1A) when the Shelf Registration Statement, any pre-effective amendment, the Prospectus Statement or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed filed, and, with respect to the Shelf Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective;
, (2B) of any written request by the SEC Commission for amendments to the Shelf Registration Statement or amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC for additional information relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
thereto, (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Shelf Registration Statement; and
(4) Statement under the Act or of the receipt suspension by the Company of any notification with respect to the suspension state securities commission of the qualification of the Shares for offering or sale in any Registrable Common Stock jurisdiction, or the initiation of any proceeding for sale any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Shelf Registration Statement in order to make the statements therein not misleading, or that requires the making of any additions to or changes in the Prospectus in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. If at any time the applicable Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Shares under state securities or blue sky laws Blue Sky laws, the Company shall use its reasonable best efforts to obtain the withdrawal or lifting of any jurisdiction.such order at the earliest possible time;
(bv) The Company represents and warrants that no subject to Section 4(a)(ii), if any fact or event contemplated by Section 4(a)(iv)(D) above shall exist or have occurred, prepare a post-effective amendment or supplement to the Shelf Registration Statement (including or related Prospectus or any amendments document incorporated therein by reference or supplements thereto and Prospectuses contained therein) shall file any other required document so that, as thereafter delivered to the purchasers of Shares, the Prospectus will not contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading misleading;
(a “Suspension Notice”)vi) upon the request of counsel for the Holders, Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant furnish to such counsel before filing with the Commission, copies of any Shelf Registration Statement for a reasonable length or any Prospectus included therein or any amendments or supplements to any such Shelf Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of time not such Shelf Registration Statement);
(vii) upon the request of any Holder, provide copies of any document filed with the Commission that is incorporated by reference into the Shelf Registration Statement or Prospectus to exceed 10 days such Holder;
(45 days in the case of an event described in Section 3(d)viii) until Purchaser is advised in writing by the Company that the use deliver to each Holder, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Holder reasonably may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereofrequest; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required hereby consents to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use (in accordance with law) of the Prospectus may be resumed and any amendment or receives supplement thereto by each Holder in connection with the copies offering and the sale of the supplemented Shares covered by the Prospectus or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices amendment or notices of any Delay Period in any twelve (12)-month period.supplement thereto;
(f) 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 (as defined in Rule 405 under the Securities Actix) in connection with any registration sale of Shares by BOA, cooperate with the Holders to facilitate the timely preparation and delivery of certificates (including global certificates registered in the name of Cede & Co. as nominee for The Depository Trust Company) representing Shares to be sold and not bearing any restrictive legends; and, in the case of certificated Shares, to register such Shares in such denominations and such names as the Holders may request at least two Business Days prior to such sale of Shares;
(x) list all shares of Common Stock covered by the Shelf Registration Statement on any securities exchange on which the Common Stock is then listed; and
(xi) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders with regard to the Shelf Registration Statement, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) covering Registrable Common Stock, without a twelve-month period beginning after the prior written consent effective date of Purchaser and any underwriterthe Shelf Registration Statement (as such term is defined in paragraph (c) of Rule 158 under the Act).
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this AgreementShelf Registration Statement, the Company shall shall:
(i) use its reasonable best efforts to effect the such registration and to permit the sale of such Registrable Common Stock the Transfer Restricted Securities being sold in accordance with Purchaser’s the intended method or methods of disposition thereofdistribution thereof (as indicated in the information furnished to the Company pursuant to Section 4 hereof), and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) will prepare and file with the SEC Commission a Shelf Registration Statement relating to the registration on any appropriate form under the Act, which form shall be available for the sale of the Transfer Restricted Securities in accordance with respect the intended method or methods of distribution thereof within the time periods and otherwise in accordance with the provisions hereof. The Company shall not be permitted to such Registrable Common Stock and use its reasonable best efforts to cause such include in the Shelf Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and securities other than the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoTransfer Restricted Securities;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary use its best efforts to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, continuously effective and provide all requisite financial statements for the period specified in each case, the duration Section 3 of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of Agreement. Upon the occurrence of any event as a result of which that would cause any such Shelf Registration Statement or the Prospectus contains an untrue statement of a material fact or omits any material fact necessary contained therein (i) to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), misleading or (ii) take all not to be effective and usable for resale of Transfer Restricted Securities during the period required by this Agreement, the Company shall file promptly (A) an appropriate amendment to such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of Shelf Registration Statement curing such Registrable Common Stock (includingdefect, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other casesif Commission review is required, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock amendment to be listed on NASDAQdeclared effective as soon as practicable, (B) a supplement pursuant to Rule 424 under the Act curing such defect or any exchange on which securities of the same class issued (C) an Exchange Act report incorporated by the Company are then listed or, if no reference curing such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaserdefect;
(xiii) provide prepare and file with the Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep such Shelf Registration Statement effective for the applicable period set forth in Section 3 hereof, cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully with Rules 424, 430A and 462, as applicable, under the Act in a transfer agent timely manner; and registrar for comply with the provisions of the Act with respect to the disposition of all Transfer Restricted Securities covered by such Registrable Common Stock not later than Shelf Registration Statement during the effective date applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Shelf Registration StatementStatement or supplement to the Prospectus;
(xiiv) if requested, cause to be delivered, immediately prior to advise the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser Holders and each underwriterunderwriters, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; promptly and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
requested by such Persons, confirm such advice in writing, (1A) when the Shelf Registration Statement, any pre-effective amendment, the Prospectus Statement or any Prospectus supplement or post-post- effective amendment to the Registration Statement has been filed filed, and, with respect to the Shelf Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective;
, (2B) of any written request by the SEC Commission for amendments to the Shelf Registration Statement or amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC for additional information relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
thereto, (3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Shelf Registration Statement; and
(4) Statement under the Act or of the receipt suspension by the Company of any notification with respect to the suspension state securities commission of the qualification of the Transfer Restricted Securities for offering or sale in any Registrable Common Stock for sale under jurisdiction, or the applicable securities or blue sky laws initiation of any jurisdiction.proceeding for any of the preceding purposes, (D) of the existence of any fact or the happening of any event that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto made, not misleading;
(bv) The Company represents and warrants that no subject to Section 5(a)(ii), if any fact or event contemplated by Section 5(iv)(D) above shall exist or have occurred, prepare a post-effective amendment or supplement to the Shelf Registration Statement (including or related Prospectus or any amendments document incorporated therein by reference or supplements thereto and Prospectuses contained therein) shall file any other required document so that, as thereafter delivered to the purchasers of Transfer Restricted Securities, the Prospectus will not contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading misleading;
(a “Suspension Notice”)vi) deliver to each Holder and underwriter, Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for if any, without charge, a reasonable length number of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Holder or underwriter reasonably may be resumed request; the Company hereby consents to the use (in accordance with law) of the Prospectus and is furnished any amendment or supplement thereto by each Holder and each underwriter, if any, in connection with a supplemented the offering and the sale of the Transfer Restricted Securities covered by the Prospectus or amended Prospectus any amendment or supplement thereto;
(vii) prior to any offering of Transfer Restricted Securities, cooperate with the Holders in connection with the registration and qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions as contemplated reasonably requested and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Transfer Restricted Securities covered by Section 8(a) hereofthe Shelf Registration Statement; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled required to deliver more register or qualify as a foreign corporation where it is not now so qualified or to take any action that would subject it to the service of process in suits or to taxation, other than a total of three (3) Suspension Notices or notices of any Delay Period as to matters and transactions relating to the Shelf Registration Statement, in any twelve (12)-month period.jurisdiction where it is not now so subject;
(f) 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 (as defined in Rule 405 under the Securities Actviii) in connection with any sale of Transfer Restricted Securities that will result in such securities no longer being Transfer Restricted Securities, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends;
(ix) list all shares of Common Stock covered by the Shelf Registration Statement on the principal U.S. securities exchange on which the Common Stock is then listed;
(x) use its best efforts to cause the disposition of the Transfer Restricted Securities covered by the Shelf Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be required to enable the seller or sellers thereof to consummate the disposition of such Transfer Restricted Securities;
(xi) use its best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security holders with regard to the Shelf Registration Statement, as soon as practicable, a consolidated earnings statement meeting the requirements of Rule 158 (which need not be audited) covering a twelve-month period beginning after the Effective Date (as such term is defined in paragraph (c) of Rule 158 under the Act);
(xvii) provide to the Holders with a reasonable opportunity to review and comment on any registration statement to be filed pursuant to this Agreement prior to the filing thereof with the Commission, and shall make all changes thereto as any Holder may request in writing to the extent such changes are required, in the judgment of the Company, by the Act;
(xviii) use reasonable commercial efforts to obtain the withdrawal of any order suspending the effectiveness of such registration statement, or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Transfer Restricted Securities for sale in any jurisdiction, at the earliest possible moment;
(xix) use its best efforts to furnish to each Holder and to each managing underwriter, if any, a signed counterpart, addressed to such Holder or such underwriter, if any, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company's independent public accountants pursuant to SAS 72, each in customary form and covering Registrable Common Stocksuch matters of the type customarily covered by opinions or comfort letters, as the case may be, as such Holder or the managing underwriter reasonably requests;
(xx) enter into customary agreements (including underwriting agreements in customary form, which shall include "lock-up" obligations as may be requested by the managing underwriters, not to exceed 90 days in duration, but excluding shares that may be issued pursuant to benefit plans or in connection with mergers or acquisitions) and take such other actions (including using its reasonable efforts to make such domestic road show presentations and otherwise engaging in such reasonable marketing support in connection with any underwritten offering, including without limitation the prior written obligation to make its executive officers available for such purpose of so requested by the selling Holder (a "Road Show")) as are reasonably requested by any selling Holder in order to expedite or facilitate the sale of any Transfer Restricted Securities covered by a registration statement pursuant to an underwritten offering in accordance herewith; and
(xxi) select an investment banking firm or firms of national standing to manage the underwritten offering, subject to the reasonable consent of Purchaser and any underwriterthe Holders of a majority of the Transfer Restricted Securities for such registration.
Appears in 1 contract
Sources: Common Stock Registration Rights Agreement (Chesapeake Energy Corp)
Procedures. (a) In connection with If and whenever the Company is required to effect the registration of any Registrable Securities under the Securities Act as provided in Section 2(a) and sale 2(b) of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Commission the Registration Statement with respect Statement, or amendments thereto, to effect such Registrable Common Stock registration (including such audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder) and thereafter use its commercially reasonable best efforts to cause such Registration Statement registration statement to become be declared effective by the Commission, as soon as practicable thereafterpracticable, but in any event no later than the Required Effectiveness Date (with respect to a registration pursuant to Section 2(a) of this Agreement); and provided, however, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, the Company will furnish to Purchaser and one counsel selected by the underwriter or underwriters, if anyholders of Registrable Securities which are to be included in such registration, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) with respect to any registration statement pursuant to Section 2(a) or Section 2(b), prepare and file with the SEC 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 a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement registration statement until the earlier to occur of two (2) years after the Closing Date (subject to the right of the Company to suspend the effectiveness thereof for not more than 15 consecutive Trading Days or an aggregate of 20 Trading Days during any calendar year (each a “Black-Out Period”)) or such period in accordance with time as all of the intended methods securities which are the subject of disposition by Purchaser thereof set forth in such Registration Statement andregistration statement cease to be Registrable Securities (such period, in each case, the case of the Shelf “Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownMaintenance Period”);
(iii) furnish to Purchaser each holder of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such Registration Statement, each amendment and supplement thereto, each Prospectus registration statement (including each preliminary Prospectus prospectus and Prospectus supplementany summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents documents, as Purchaser such holder of Registrable Securities and any underwriter(s) underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Common Stock, provided, however, that the Company shall have no Securities owned by such obligation to furnish copies holder of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the CompanyRegistrable Securities;
(iv) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other U.S. federal or state securities laws or U.S. state blue sky laws as any U.S. holder of Registrable Securities thereof shall reasonably request, to keep such jurisdictions (domestic registrations or foreign) qualifications in effect for so long as Purchaser such registration statement remains in effect, and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such holder of Registrable Securities to consummate the disposition in such jurisdictions of the securities owned by such holder of Registrable Common Stock (providedSecurities, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 4(a)(iv) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its commercially reasonable best efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the U.S. holder of Registrable Securities to consummate the disposition of such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities Securities in accordance with the plan of distribution set forth in the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaserregistration statement;
(xvi) provide if such registration includes an underwritten public offering, furnish to each holder of Registrable Securities a transfer agent signed counterpart, addressed to such holder of Registrable Securities, and registrar the underwriters, of an opinion of counsel for all such Registrable Common Stock not later than the Company, dated the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to registration statement and an opinion dated the pricing date of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, the closing under the underwriting agreement in the case of an underwritten offering, at form required by the time of closing of the sale of Registrable Common Stock pursuant theretounderwriting agreement), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiiivii) notify the Investors and their counsel promptly notify Purchaser and confirm such advice in writing promptly after the underwriter or underwriters, if anyCompany has knowledge thereof:
(1A) when the Registration Statement, any pre-effective amendment, the Prospectus prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed filed, and, with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective;
(2B) of any written request by the SEC Commission for amendments or supplements to the Registration Statement or any Prospectus the prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerfor additional information;
(3C) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC Commission of any stop order suspending the effectiveness of the Registration StatementStatement or the initiation of any proceedings by any Person for that purpose; and
(4D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Securities for sale under the applicable securities or blue sky laws of any jurisdiction.jurisdiction or the initiation or threat of any proceeding for such purpose;
(bviii) The Company represents notify each holder of Registrable Securities covered by such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the happening of any 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 any material facts required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and warrants that no Registration Statement (including at the request of any amendments such holder of Registrable Securities promptly prepare and furnish to such holder of Registrable Securities a reasonable number of copies of a supplement to or supplements thereto and Prospectuses contained therein) an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Investors of such securities, such prospectus shall contain any not include an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to light of the Company by or on behalf of Purchaser specifically for use therein).circumstances then existing;
(cix) The Company shall use its commercially reasonably efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(x) otherwise use its commercially reasonable best efforts to comply with all applicable rules and regulations of the Commission;
(xi) make available to Purchaser (i) promptly its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months, but not more than eighteen months, beginning with the first full calendar month after the same is prepared and publicly distributedeffective date of such registration statement, filed with which earnings statement shall satisfy the SEC, or received by the Company, one copy provisions of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf Section 11(a) of the Company to the SEC or the staff of the SEC Securities Act and Rule 158 thereunder;
(or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), xii) enter into such agreements and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and take such other documents actions as Purchaser or any underwriter may the Investors shall reasonably request in writing (at the expense of the requesting or benefiting Investors) in order to expedite or facilitate the disposition of such Registrable Securities; and
(xiii) use its best efforts to list all Registrable Securities covered by such registration statement on any securities exchange or market on which the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewStock is then listed.
(dxiv) The Company may require Purchaser to furnish to in the Company any other information regarding Purchaser and event that the distribution of such securities as Company, with the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company consent of the happening Agent, as defined in the Loan agreement, or of holders of a majority of the Registrable Securities, includes in a registration statement filed pursuant to Section 2(a) or 2(b) of this Agreement any event shares of Common Stock which are not Registrable Securities and, as a result of which comments from the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”)Commission, Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by reduce the number of days during shares of Common Stock which may be registered pursuant to the period from and including the date of the giving registration statement, all of such Suspension Notice to and including other shares of Common Stock will be withdrawn from the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering before any Registrable Common Stock, without the prior written consent of Purchaser and any underwriterSecurities are withdrawn.
Appears in 1 contract
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant whenever AMRE is required to this Agreement, the Company shall use its commercially reasonable best efforts to effect the registration and of any Registrable Securities under the sale of such Registrable Common Stock Securities Act as provided in accordance with Purchaser’s intended methods of disposition thereofSections 6(a) or 6(b) hereof, and pursuant thereto AMRE will, subject to the Company shall as expeditiously as reasonably practicablelimitations provided herein:
(i) promptly prepare and as soon as reasonably practicable file with the SEC a Registration Statement with respect Securities and Exchange Commission (the "SEC") the requisite registration statement to effect such Registrable Common Stock registration and thereafter, subject to the provisions of Section 6 hereof, use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretopromptly effective;
(ii) promptly prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement andregistration statement; provided, however, that AMRE shall not in any event be required to keep the case registration statement effective for a period of more than three months after such registration statement becomes effective; and provided, further that AMRE may delay the Shelf Registration Statementfiling or suspend the effectiveness of any registration under this Agreement, prepare or without suspending such effectiveness instruct the Signatory Stockholders not to sell any Registrable Securities included in any such registration, if (A) AMRE shall have determined that AMRE would be required to disclose any action taken or proposed to be taken by AMRE in good faith, including without limitation the acquisition or divestiture of assets, which disclosure would adversely effect AMRE or on such actions, or (B) required by law, to update the prospectus supplements containing relating to any such disclosures registration to include updated financial statements (a "SUSPENSION PERIOD") by providing the Signatory Stockholders with written notice of such Suspension Period and the reasons therefor. Each Stockholder agrees to maintain such reason as is disclosed by AMRE in strict confidence. In addition, AMRE shall not be required to keep any registration effective, or may be reasonably without suspending such effectiveness, instruct the Signatory Stockholders who have Registrable Securities included in such registration not to sell such securities, during any period which AMRE is instructed, directed, ordered or otherwise requested by Purchaser any governmental agency or self-regulatory organization to stop or suspend such trading or sales ("SUPPLEMENTAL EXTENSION PERIOD"). In the event of a Suspension Period or Supplemental Extension Period, the period during which any underwriter(sregistration under this Agreement is to remain effective pursuant to this Section 6(d) in connection with each shelf takedownshall be tolled until the end of any such Suspension Period or Supplemental Extension Period;
(iii) furnish to Purchaser each of the Signatory Stockholders who have Registrable Securities included in the registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such Registration Statement, each amendment and supplement thereto, each Prospectus registration statement (including each preliminary Prospectus prospectus and Prospectus supplementany summary prospectus) and such any other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no such obligation to furnish copies of a final prospectus if the conditions of filed under Rule 172(c) under the Securities Act are satisfied by the Company;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered 424 under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents documents, as Purchaser or any underwriter such Signatory Stockholders may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.;
Appears in 1 contract
Sources: Merger Agreement (Amre Inc)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaserthe Stockholder’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedowntakedown or otherwise reasonably requested by the Stockholder or any underwiter), furnish to Purchaser the Stockholder and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthe Stockholder, the exhibits incorporated by reference, and Purchaser the Stockholder (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser the Stockholder (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Stockholder thereof set forth in such Registration Statement and, in the case of the a Shelf Registration Statement, prepare such post-effective amendments and prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Stockholder or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser the Stockholder such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser the Stockholder and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and the Stockholder or any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser the Stockholder and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction, unless reasonably required for dispositions by the Stockholder or underwriter of Registrable Common Stock in such jurisdictions);
(v) make such filings with and pay such fees and expenses relating to FINRA as the Stockholder and any underwriters(s) reasonably requests and do any and all other things that may be reasonably necessary or advisable to enable the Stockholder and any underwriter(s) to obtain FINRA approval with regard to any Registration Statement or underwritten offering;
(vi) notify Purchaser the Stockholder and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the Stockholder or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vivii) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser the Stockholder or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser the Stockholder and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserthe Stockholder;
(viiviii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser Investors under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viiiix) make available for inspection by Purchaserthe Stockholder, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser the Stockholder or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserthe Stockholder, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ixx) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any each securities exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on an automated quotation system of a national securities exchange selected by association or the OTC Bulletin Board. Following such time as the Company and agreed becomes eligible list its Common Stock on the The New York Stock Exchange, the Nasdaq Global Market or Nasdaq Capital Market, it shall use its reasonable best efforts to by Purchaserpromptly list its Common Stock, including the Registrable Common Stock on such exchange;
(xxi) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xixii) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser the Stockholder and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xiixiii) make generally available to Purchaser and its Affiliates stockholders a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and;
(xiiixiv) promptly notify Purchaser the Stockholder and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction; and
(xv) Take all such actions (a) as may be reasonably necessary, including obtaining opinions of counsel satisfactory to the transfer agent for the Common Stock, to remove the restrictive legends from any shares of Registrable Common Stock and reissue certificates evidencing such shares of Registrable Common Stock, upon (1) the sale of such shares or (2) at such time as all conditions for the removal of such legends under the federal securities laws have been satisfied and (b) at such time where the Stockholder beneficially owns, and has the existing or contingent right to receive upon exercise of any existing or contingent warrants, 7% or less of the outstanding Common Stock (and has beneficially owned 10% or less of the Common Stock for the prior 3-month period), and does not have affiliate status based on other criteria, provide an opinion of counsel or instruction acceptable to the Company’s transfer agent stating that any restrictive legend on the Registrable Common Stock may be removed or, with respect to Warrant Shares, that such Warrant Shares may be issued without restrictive legends. Such other criteria may include additional voting or approval rights in the conduct of the affairs of the Company beyond the Stockholder’s proportionate rights as a holder of Common Stock, the right to designate one or more members of the Company’s Board of Directors or management of the Company or any other special rights in the Stockholder’s capacity as a Stockholder of the Company (without regard to any limitations that may be included under the terms of indebtedness of the Company to the Stockholder) that by their terms allow the Stockholder disproportionate input into the conduct of the Company’s operations (collectively, “Control Rights”). The parties hereto acknowledge that, as of the date hereof, and, upon consummation of the transactions contemplated by the Exchange Agreement, no such Control Rights exist or shall result therefrom.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser the Stockholder furnished to the Company by or on behalf of Purchaser the Stockholder specifically for use therein).
(c) The Company shall make available to Purchaser the Stockholder (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Stockholder or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser the Stockholder of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Stockholder to furnish to the Company any other information regarding Purchaser the Stockholder and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser The Stockholder agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser the Stockholder will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 twenty (20) days (45 days in until the case of an event described in Section 3(d)) until Purchaser Stockholder is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser the Stockholder shall not exceed ninety sixty (9060) days in the aggregate in any 12 month period. If the Company shall give Purchaser the Stockholder any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Stockholder either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices in any 12-month period. The Company shall not file any registration statement for sales of securities or notices commence a sale of securities on its own behalf or on behalf of any Delay Period in other securityholder during any twelve (12)-month periodBlackout Period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.conn
Appears in 1 contract
Procedures. (a) In connection Whenever the Stockholders have requested that any Registrable Securities be registered in accordance with the registration and sale of Registrable Common Stock pursuant to this AgreementArticle II or III, the Company shall will use its all reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the intended methods method of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible will (or, in the case of clause (p) below, will not):
(a) prepare and file with the Commission a registration statement with respect to such Qualifying Offering or such Registrable Securities, as the case may be (such registration statement to include in each case all information which the holders of the Registrable Securities to be registered thereby, if any, shall reasonably practicable:request) and use all reasonable efforts to cause such registration statement to become effective, provided that as promptly as practicable before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will (i) furnish copies of all such documents proposed to be filed to one counsel selected by the Required 399 Stockholders, and the Company shall not file any such documents to which any such relevant counsel shall have reasonably objected on the grounds that such document does not comply in all material respects with the requirements of the Securities Act, and (ii) notify each 399 Stockholder, in the case of a Qualifying Offering requested pursuant Section 2.1(a), and each holder of Registration Rights Agreement Registrable Securities covered by such registration statement, in all other cases, of (x) any request by the Commission to amend such registration statement or amend or supplement any prospectus, or (y) any stop order issued or threatened by the Commission, and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC 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 a at all times during the period commencing on the effective date of not less than 90 dayssuch registration statement and ending on the first date as of which all Registrable Securities (and all shares of Common Stock to be sold by the Company, in the case of a Demand Registration Statement or an aggregate of eighteen (18Qualifying Offering requested pursuant to Section 2.1(a)) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement registration statement are sold in accordance with the intended plan of distribution set forth in such registration statement and (ii) comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during such period in accordance with the intended methods of disposition by Purchaser the sellers thereof set forth in such Registration Statement registration statement;
(c) furnish, without charge, (i) in the case of a Qualifying Offering requested pursuant to Section 2.1(a), to each 399 Stockholder, five conformed copies of such registration statement, each amendment and supplement thereto and the prospectus included in such registration statement (including each preliminary prospectus and, in the case of the Shelf Registration Statementtwo of such copies, prepare such prospectus supplements containing such disclosures as may be reasonably requested including all exhibits thereto and documents incorporated by Purchaser or any underwriter(sreference therein), and (ii) in connection with all other cases, to each shelf takedown;
(iii) furnish to Purchaser seller of Registrable Securities covered by such registration statement, such number of conformed copies of such Registration Statementregistration statement, each amendment and supplement thereto, each Prospectus the prospectus included in such registration statement (including each preliminary Prospectus prospectus and, in each case, including all exhibits thereto and Prospectus supplementdocuments incorporated by reference therein) and such other documents as Purchaser and any underwriter(s) such seller may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no Securities owned by such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Companyseller;
(ivd) use its reasonable best efforts to register or qualify the Registrable Securities, if any, covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic as any seller thereof shall reasonably request, to keep such registration or foreign) qualification in effect for so long as Purchaser such registration statement remains in effect and any underwriter(s) reasonably requests and to do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the any such Registrable Common Stock (Securities owned by such seller; provided, however, that the Company will not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph clause (ivd), (2ii) subject itself to taxation in any such jurisdiction or (3iii) consent to general service of process in any such jurisdiction);
(ve) furnish to each seller of the Registrable Securities, if any, covered by such registration statement a signed copy, addressed to such seller (and the underwriters, if any) of an opinion of counsel for the Company or special counsel to the selling stockholders, dated the effective date of such registration statement (and, if such registration statement includes an underwritten public offering, dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to such seller, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) as are customarily covered in opinions of issuer's counsel delivered to the underwriters in underwritten public offerings, and such other legal matters as the seller (or the underwriters, if any) may reasonably request;
(f) notify Purchaser each 399 Stockholder (in the case of a Qualifying Offering requested pursuant to Section 2.1(a)) and any underwriter(seach seller of Registrable Securities covered by such registration statement (in all other cases), at any a time when a Prospectus prospectus relating thereto to such Qualifying Offering or Registrable Securities (as the case may be) is required to be delivered under the Securities Act, of the occurrence of any event known to the Company as a result of which any Prospectus the prospectus included in such registration statement, as then in effect, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, misleading in light of the circumstances under which they were made; and, at the request of Purchaser or any underwriter(s)seller of Registrable Securities covered by such registration statement, (i) the Company shall will prepare and furnish such seller a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit delivered to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition purchasers of such Registrable Common Stock (includingSecurities, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock prospectus shall not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf light of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, circumstances under which they were made and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements such registration statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice notice to and including such seller to the date Purchaser either is advised when the Company made available to such seller an appropriately amended or supplemented prospectus;
(g) cause the Registrable Securities, if any, covered by such registration statement to be listed on each securities exchange on which similar securities issued by the Company that are then listed and to enter into such customary agreements as may be required in furtherance thereof, including without limitation listing applications and indemnification agreements in customary form;
(h) provide a transfer agent and registrar for the Registrable Securities, if any, covered by such registration statement not later than the effective date of such registration statement;
(i) enter into such customary arrangements and take all such other actions as the holders of a majority (by number of shares) of the Registrable Securities, if any, covered by such registration statement or the underwriters, if any, reasonably request in order to expedite or facilitate Registration Rights Agreement the Qualifying Offering or the disposition of such Registrable Securities (including using its best efforts to effect a stock split or a combination of shares);
(j) make available for inspection by any seller of Registrable Securities covered by such registration statement, any underwriter participating in any disposition of securities pursuant to such registration statement and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company and all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to discussions with the Commission or its staff in connection with such registration statement, and cause the Company's officers, directors, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(k) subject to the other provisions hereof, use all reasonable efforts to cause the Registrable Securities, if any, covered by such registration statement to be registered with or approved by such governmental agencies or authorities or self-regulatory organizations as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(l) use all reasonable efforts to obtain a "cold comfort" letter, dated the effective date of such registration statement (and, if such registration includes an underwritten offering, dated the date of the closing under the underwriting agreement), signed by the independent public accountants who have certified the Company's financial statements included in such registration statement, addressed to the Company, to each seller of the Registrable Securities (if any) covered by such registration statement, and to the underwriters, if any, covering substantially the same matters with respect to such registration statement (and the prospectus included therein) and with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants' letters delivered to the underwriters in underwritten public offerings of securities and such other financial matters as any such seller or the underwriters, if any, may reasonably request;
(m) otherwise use all reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its security holders, in each case as soon as practicable, an earnings statement covering a period of at least twelve months, beginning with the first month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(n) permit any holder of Registrable Securities covered by such registration statement, which holder, in the sole judgment, exercised in good faith, of such holder might be deemed to be a controlling person of the Company (within the meaning of the Securities Act or the Exchange Act) to participate in the preparation of such registration statement and to include therein Registration Rights Agreement material, furnished to the Company in writing, which in the reasonable judgment of such holder should be included and which is reasonably acceptable to the Company;
(o) use all reasonable efforts to obtain the lifting at the earliest possible time of any stop order suspending the effectiveness of such registration statement or of any order preventing or suspending the use of any preliminary prospectus included therein;
(p) at any time file or make any amendment to such registration statement, or any amendment of or supplement to the Prospectus may be resumed or receives the copies prospectus included therein (including amendments of the supplemented documents incorporated by reference into the prospectus), (i) of which each 399 Stockholder and the managing underwriters (in the case of a Qualifying Offering requested pursuant to Section 2.1(a)) or amended Prospectus contemplated each seller of Registrable Securities covered by such registration statement or the managing underwriters, if any (in all other cases), shall not have previously been advised and furnished a copy or (ii) to which the Required 399 Stockholders, the managing underwriters or counsel for the Required 399 Stockholders or the managing underwriters (in the case of a Qualifying Offering requested pursuant to Section 8(a2.1(a)), or the sellers of a majority (by number of shares) of the Registrable Securities covered by such registration statement, the managing underwriters (if any) or counsel for such sellers or any such managing underwriters (in all other cases), shall reasonably object;
(q) make such representations and warranties (subject to appropriate disclosure schedule exceptions) to the sellers of the Registrable Securities, if any, covered by such registration statement and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters and selling holders, as the case may be, in underwritten public offerings of substantially the same type; and
(r) if such registration statement refers to any seller of Registrable Securities covered thereby by name or otherwise as the holder of any securities of the Company then (whether or not such seller is or might be deemed to be a “Blackout Period”controlling person of the Company). In any event, (i) at the request of such seller, insert therein language, in form and substance reasonably satisfactory to such seller, the Company shall and the managing underwriters, if any, to the effect that the holding by such seller of such securities is not to be entitled to deliver more than construed as a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) The Company shall not permit any officer, director, underwriter, broker or any other person acting on behalf recommendation by such seller of the Company investment quality of the Registrable Securities or the Company's other securities covered thereby and that such holding does not imply that such seller will assist in meeting any future financial requirements of the Company, or (ii) in the event that such reference to use any free writing prospectus (as defined in Rule 405 under such seller by name or otherwise is not required by the Securities Act) in connection with , any registration statement covering Registrable Common Stocksimilar Federal or state statute, without or any rule or regulation of any regulatory body having jurisdiction over the prior written consent offering, at the request of Purchaser and any underwriter.such seller, delete the reference to such seller. Registration Rights Agreement
Appears in 1 contract
Sources: Registration Rights Agreement (Analog Acquisition Corp)
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall is required to use its reasonable best efforts to effect the registration and of any Registrable Securities under the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofSecurities Act, and pursuant thereto the Company shall as expeditiously as reasonably practicablepromptly:
(i) prepare and file with the SEC Securities and Exchange Commission a Registration Statement registration statement with respect to such Registrable Common Stock securities, make all required filings with the NASD and use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoeffective;
(ii) prepare and file with the SEC Securities and Exchange 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 a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement andregistration statement, but in the case no event for a period of the Shelf Registration Statement, prepare more than six months after such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownregistration statement becomes effective;
(iii) furnish to Purchaser counsel (if any) elected by holders of a majority (by number of shares) of the Registrable Securities covered by such registration statement copies of all documents proposed to be filed with the Securities and Exchange Commission in connection with such registration, which documents shall be subject to the review of such counsel;
(iv) furnish to each seller of such securities such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits, except that the Company shall not be obligated to furnish any seller of securities with more than two copies of such exhibits), such number of copies of the prospectus included in such Registration Statement, each amendment and supplement thereto, each Prospectus registration statement (including each such preliminary Prospectus prospectus and Prospectus supplement) any summary prospectus), in conformity with the requirements of the Securities Act, and such other documents documents, as Purchaser and any underwriter(s) such seller may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no securities owned by such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Companyseller;
(ivv) use its reasonable best efforts to register or qualify such Registrable Common Stock securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests each seller shall request, and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such seller, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would is not otherwise be required so qualified, or to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction other than process served in connection with alleged violations by the Company of the securities laws of such jurisdiction);
(vvi) furnish to each seller a signed counterpart, addressed to the sellers, of
(A) an opinion of counsel for the Company, dated the effective date of the registration statement, and
(B) subject to the accountants obtaining the necessary representations as specified in Statement on Auditing Standards No. 72, a "comfort" letter signed by the independent public accountants who have certified the Company's financial statements included in the registration statement, covering substantially the same matters with respect to the registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to changes subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities;
(vii) notify Purchaser and each seller of any underwriter(s)securities covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, and at the request of Purchaser or any underwriter(s), the Company shall such seller prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such securities, such Prospectus prospectus shall not contain include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in light of the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).circumstances then existing;
(cviii) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following reasonably practicable, an earnings statement covering the resolution or clearance period of all SEC comments orat least twelve months, but not more than eighteen months, beginning with the first month after the effective date of the registration statement, which earnings statement shall satisfy the provisions of section 11(a) of the Securities Act; and
(ix) use its best efforts to list such securities on any stock market on which the Common Stock is then listed, if applicablesuch securities are not already so listed and if such listing is then permitted under the rules of such exchange, following notification by and to provide a transfer agent and registrar for such Registrable Securities not later than the SEC that any effective date of such Registration Statement or any amendment thereto will not be subject to review.
(d) registration statement. The Company may require Purchaser each seller of any securities as to which any registration is being effected to furnish to the Company any other such information regarding Purchaser such seller and the distribution of such securities as the Company may from time to time reasonably determines, based on request in writing and as shall be required by law in connection therewith. Each such holder agrees to furnish promptly to the advice of counsel, is Company all information required to be included disclosed in order to make the information previously furnished to the Company by such holder not materially misleading. By acquisition of Registrable Securities, each holder of such Registrable Securities shall be deemed to have agreed that upon receipt of any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed includedkind described in Section 22(b)(vii) in hereof, such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith holder shall promptly discontinue such holder's disposition of Registrable Common Stock Securities pursuant to the registration statement covering such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) Registrable Securities until Purchaser is advised in writing by the Company that the use such holder's receipt of the Prospectus may be resumed and is furnished with a copies of the supplemented or amended Prospectus as prospectus contemplated by Section 8(a22(b)(vii) hereof; provided. If so directed by the Company, however, that such postponement of sales each holder of Registrable Common Stock by Purchaser Securities shall not exceed ninety deliver to the Company (90at the Company's expense) days all copies, other than permanent file copies, then in such holder's possession of the aggregate in any 12 month periodprospectus covering such Registrable Securities current at the time of receipt of such notice. If In the event the Company shall give Purchaser any Suspension Noticesuch notice, the Company period mentioned in Section 22(b)(ii) hereof shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement be extended by the number of days during the period from and including the date of the giving of such Suspension Notice notice to and including the date Purchaser either is advised when each seller of any Registrable Securities covered by the Company that the use of the Prospectus may be resumed or receives such registration statement shall have received the copies of the supplemented or amended Prospectus prospectus contemplated by Section 8(a22(b)(vii) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodhereof.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Warrant Agreement (Bull Run Corp)
Procedures. (a) In connection with the registration and sale of event that the Investor requests that any Registrable Common Stock Securities be sold or registered pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the Investor's intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock Securities and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; in any event not later than the time periods stated in Sections 2(a) and 3(a), if and as applicable, and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the Investor and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthe Investor, the exhibits incorporated by reference, and Purchaser the Investor (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser the Investor (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 one hundred and eighty (180) days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) monthsfive years, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Investor thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Investor or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser the Investor such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser the Investor and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser the Investor and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser the Investor and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock Securities (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser the Investor and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the Investor or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser the Investor or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock Securities (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser the Investor and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserthe Investor;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser the Investor under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaserthe Investor, any underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser the Investor or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserthe Investor, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock Securities to be listed on NASDAQ, or any each securities exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on Nasdaq or a national securities exchange selected by the Company and agreed to by PurchaserCompany;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Securities not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock Securities pursuant thereto), letters from the Company’s 's independent registered public accountants addressed to Purchaser the Investor and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates Investors a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser the Investor and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerStatement;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Securities for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser the Investor furnished to the Company by or on behalf of Purchaser the Investor specifically for use therein).
(c) The Company shall make available to Purchaser the Investor (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Investor or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities. The Company will promptly notify Purchaser the Investor of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable practicable, in any event not later than the timeframes stated in Sections 2(a) or 3(a) as and if applicable, and shall file an acceleration request, if necessary, as soon as practicable immediately following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Investor to furnish to the Company any other information regarding Purchaser the Investor and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser The Investor agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “"Suspension Notice”"), Purchaser the Investor will forthwith discontinue ----------------- disposition of Registrable Common Stock Securities pursuant to such Registration Statement for a reasonable length of time not to exceed 10 ten (10) days (45 thirty (30) days in the case of an event described in Section 3(d)) until Purchaser the Investor is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a9(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock -------- ------- Securities by Purchaser the Investor shall not exceed ninety forty-five (9045) days in the aggregate in any 12 month period. If the Company shall give Purchaser the Investor any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Investor either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a9(a) (a “"Blackout Period”"). In any event, --------------- the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month 12) month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common StockSecurities, without the prior written consent of Purchaser the Investor and any underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (Worldwater & Power Corp)
Procedures. The Company shall (ai) In connection with notify the registration Investors promptly after it shall receive notice thereof, of the time when the Registration Statement has become effective or any supplement to any prospectus forming a part of the Registration Statement has been filed; (ii) notify the Investors promptly of any request by the Commission for the amending or supplementing of the Registration Statement or prospectus or for additional information and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of file any such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofamendment or supplement within 10 days, and pursuant thereto in no event more than 20 days after such request or receipt of comments from the Company shall as expeditiously as reasonably practicable:
Commission's staff; (iiii) prepare and file with the SEC a Registration Statement with respect Commission, promptly upon any Investor's request, any amendment or supplement to such registration statement or prospectus which, in the opinion of counsel for the Investor and counsel for the Company, may be necessary or desirable in connection with the distribution of the Registrable Common Stock Securities by such Investor; (iv) prepare and use its reasonable best efforts promptly file with the Commission, and promptly notify the Investors of the filing of, such amendment or supplement to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a the Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 dayscorrect any misstatement or omission, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus prospectus relating thereto to the Registrable Securities is required to be delivered under the Securities Act, of the occurrence of any event shall have occurred as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain prospectus would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
misleading and such filing shall be made within the time limitations set forth in Section 4; (viv) in case the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order Investor is required to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to deliver a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offeringprospectus, at the a time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statementprospectus then in effect may no longer be used under the Act, any pre-effective amendment, the Prospectus prepare promptly upon request such amendment or any Prospectus supplement or post-effective amendment amendments to the Registration Statement has been filed and, and such prospectus or prospectuses as may be necessary to permit compliance with respect the requirements of Section 10 of the Act subject to clause (ix) below; (vi) not file any amendment or supplement to the Registration Statement or prospectus to which any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements Investor shall reasonably object after having been furnished a copy at a reasonable time prior to the Registration Statement filing thereof; (vii) advise the Investors promptly after it shall receive notice or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) obtain knowledge thereof of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order by the Commission suspending the effectiveness of the Registration StatementStatement or the initiation or threatening of any proceeding for that purpose and promptly use its best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued; and
(4viii) furnish to the Investors as soon as available copies of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments and each preliminary or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact final prospectus, or omit to state a material fact supplement required to be stated thereinprepared, or necessary pursuant to make the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributedthis Section 7, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), all in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities quantities as the Company Investors may from time to time reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
request; (eix) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser in no event shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company be obligated to keep the Registration Statement effective for a period longer than two years from the Closing Date plus a number of days equal to the number of days, if any, during which the Investor's right to offer and sell such Registrable Securities shall give Purchaser have been suspended pursuant to the provisions of Section 4 hereof (which number of days shall in no event exceed 60 during any Suspension Noticeperiod of 12 months) and the Company may after such period deregister any of the Registrable Securities remaining unsold if the Company elects to do so or if the Commission or its staff so requests; and (x) if any of the Company's shares of common stock are then listed on any securities exchange, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement will cause all shares covered by the number of days during the period from and including the date of the giving of Registration Statement to be listed on such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”exchange(s). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with Upon receipt of a Request from the registration and sale of Registrable Common Stock Shareholder or another Newmont Group entity pursuant to the provisions of this AgreementArticle 5, the Company Corporation shall use its reasonable best commercial efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofQualification, and pursuant thereto in particular, the Company shall as expeditiously as reasonably practicableCorporation shall:
(ia) prepare, sign and file (in any event within forty-five (45) days after the Request has been delivered to the Corporation) the preliminary prospectus and such other related documents as may be necessary to be filed in connection with any such preliminary prospectus and shall, as soon as possible after any comments of the Canadian Securities Commissions have been satisfied with respect thereto, prepare and file under and in compliance with the Canadian Securities Laws a final prospectus, and use its commercially reasonable efforts to cause a receipt to be issued for such prospectuses to be effective as soon as possible and shall take all other steps and proceedings that may be necessary in order to qualify the Qualifiable Securities under the applicable Canadian Securities Laws for distribution by registrants who comply with the relevant provisions of the Canadian Securities Laws (provided that, before filing all such documents referred to in this provision, the Corporation shall furnish to counsel to the Shareholder copies thereof and otherwise comply with the provisions hereof);
(b) prepare, sign and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and applicable Canadian Securities Commissions in the underwriter or underwriters, if any, copies of all such documents proposed jurisdictions in which the Qualification is to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC effected all such amendments and supplements to such Registration Statement preliminary prospectus and the Prospectus used in connection therewith prospectus as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the applicable Canadian Securities Act Laws with respect to the disposition distribution of all securities covered by the Qualifiable Securities, and to take such Registration Statement during steps as are necessary to maintain the qualification of such period in accordance prospectus until the earlier of either:
(i) the time at which the distribution of the Qualifiable Securities sought to be sold is completed; or
(ii) the date which is forty-two (42) days immediately following the date on which the prospectus is filed with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, applicable Canadian Securities Commissions in the case of jurisdictions in which the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may Qualification is to be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedowneffected;
(iiic) furnish cause to Purchaser be furnished to the Shareholder and any such other Newmont Group entity and such other persons as the Shareholder may reasonably specify:
(i) such number of copies of such Registration Statement, each amendment prospectuses and supplement thereto, each Prospectus any amendments and supplements thereto (including each preliminary Prospectus and Prospectus supplementany documents incorporated therein by reference) and such other relevant documents as Purchaser and any the underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common StockQualifiable Securities;
(ii) an opinion of counsel to the Corporation, providedsubject to customary assumptions and qualifications, howeveraddressed to the Shareholder and any such other Newmont Group entity and the underwriter(s) of such offering and dated the closing date of the offering as to the Corporation’s legal status and capacity, that the Company shall have no Corporation’s authorized capital, the valid issuance of the Qualifiable Securities, the enforceability against the Corporation of any underwriting agreement to which the Corporation is a party, the qualification of the distributions of the Qualifiable Securities, and such obligation other customary matters as the Shareholder or any such underwriters may reasonably require;
(iii) a non-statutory “comfort” letter addressed to furnish copies the underwriters dated the date of a final the prospectus if and the conditions closing date of Rule 172(c) under the Securities Act are satisfied offering signed by the Company;auditors of the Corporation in respect of the financial information contained in the prospectus; and
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under corporate certificates as are customarily furnished in securities offerings, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such other securities matters as the Shareholder or blue sky laws of any such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) may reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction)request;
(vd) notify Purchaser use its commercially reasonable efforts to comply with the Canadian Securities Laws and any underwriter(s)the rules, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence regulations and policies of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingapplicable stock exchange;
(vie) cause all such Qualifiable Securities sought to be sold to be listed on each securities exchange or over-the-counter market on which the Shares are then listed, if not already so listed;
(f) in the case event of an underwritten offeringthe issuance of any order or ruling suspending the effectiveness of a prospectus receipt or any order suspending or preventing the use of any prospectus or suspending the qualification or the distribution of any of the Qualifiable Securities qualified by such prospectus for sale in any applicable Canadian provinces, the Corporation shall promptly notify the Shareholder and any such other Newmont Group entity of such event and use its commercially reasonable efforts promptly to obtain the withdrawal of such order or ruling. The Corporation shall promptly notify the Shareholder and such other Newmont Group entity of the withdrawal of any such order or ruling; and
(i) enter into such customary agreements (including underwriting agreements in customary form), (iig) take all such other commercially reasonable actions as Purchaser permitted by law that the Shareholder or the underwriter(s) any such other Newmont Group entity reasonably request requests in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management re-sale of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued Qualifiable Securities by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter Shareholder or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewNewmont Group entity.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of the Registrable Common Stock Securities pursuant to this Agreement, the Company Laser shall use its reasonable best efforts to effect the registration and the sale of such the Registrable Common Stock Securities in accordance with Purchaser’s Parent Holdings' intended methods method of disposition thereofthereof and, and pursuant thereto the Company shall as expeditiously as reasonably practicablein connection therewith, Laser shall:
(i1) prepare and file with the SEC a the Shelf Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such the Shelf Registration Statement to become and remain effective as soon as practicable thereafter; in accordance with Sections 2.1(a) and (b) above;
(2) prepare and file with the SEC amendments and supplements to the Shelf Registration Statement and the prospectuses used in connection therewith in accordance with Section 2.1(c) above;
(3) before filing a with the SEC the Shelf Registration Statement or Prospectus prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, Laser shall furnish to Purchaser one (1) counsel selected by Parent Holdings and one (1) counsel for the underwriter or underwriterssales or placement agent, if any, copies in connection therewith, drafts of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, filed and Purchaser (and the underwriter(s), if any) shall have the provide such counsel with a reasonable opportunity to for review thereof and comment thereon, such review to be conducted and such comments to be delivered with reasonable promptness; (4) promptly (i) notify Parent Holdings of each of (w) the Company will make filing and effectiveness of the Shelf Registration Statement and each prospectus and any amendments or supplements thereto, (x) the receipt of any comments from the SEC or any state securities law authorities or any other governmental authorities with respect to any such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Shelf Registration Statement or amendment thereto prospectus or any Prospectus amendments or supplements thereto, (y) any oral or written stop order with respect to such registration, any suspension of the registration or qualification of the sale of the Registrable Securities in any jurisdiction or any supplement initiation or threatening of any proceedings with respect to any of the foregoing, and (z) of the happening of any event that requires the making of any changes in such Shelf Registration Statement, prospectus or documents incorporated or deemed to be incorporated therein by reference so that they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and (ii) use reasonable best efforts to obtain the withdrawal of any order suspending the registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any related prospectus in any jurisdiction with respect thereto;
(ii5) prepare furnish to Parent Holdings, the underwriters or the sales or placement agent, if any, and file with one (1) counsel for each of the SEC such amendments and supplements to such foregoing, a conformed copy of the Shelf Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen each amendment and supplement thereto (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period including all exhibits thereto) and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such additional number of copies of such Shelf Registration Statement, each amendment and supplement theretothereto (in such case, each Prospectus without such exhibits), the prospectus (including each preliminary Prospectus prospectus) included in such Shelf Registration Statement and Prospectus supplement) prospectus supplements and all exhibits thereto and such other documents as Purchaser and any underwriter(s) Parent Holdings, its underwriters, agent or such counsel may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 CompanyParent Holdings;
(iv6) in connection with a sale of Registrable Securities by or through an underwriter, if requested by Parent Holdings or the managing underwriter or underwriters of a Rule 415 Offering, subject to approval of counsel to Laser in its reasonable judgment, promptly incorporate in a prospectus, supplement or post-effective amendment to the Shelf Registration Statement such information concerning underwriters and the plan of distribution of the Registrable Securities as such managing underwriter or underwriters or Parent Holdings reasonably shall furnish to Laser in writing and such request to be included therein, including, without limitation, information with respect to the number of Registrable Securities being sold by Parent Holdings to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any other terms of the underwritten offering of the Registrable Securities to be sold in such offering; and make all required filings of such prospectus, supplement or post- effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such prospectus, supplement or post-effective amendment;
(7) use its reasonable best efforts to register or qualify such the Registrable Common Stock Securities for offer and sale under such other securities or "blue sky sky" laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) Parent Holdings reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) Parent Holdings to consummate the disposition in such jurisdictions of in which the Registrable Common Stock Securities are to be sold and keep such registration or qualification in effect for as long as the Shelf Registration Statement remains effective under the Securities Act (provided, provided that the Company will Laser shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)paragraph, (2ii) subject itself to taxation in any such jurisdiction where it would not otherwise be subject to taxation but for this paragraph or (3iii) consent to the general service of process in any such jurisdictionjurisdiction where it would not otherwise be subject to general service of process but for this paragraph);
(v) 8) notify Purchaser and any underwriter(s)Parent Holdings, at any time when a Prospectus prospectus relating thereto to the Shelf Registration Statement is required to be delivered under the Securities Act, upon the discovery that, or of the occurrence happening of any event as a result of which any Prospectus which, the Shelf Registration Statement, as then in effect, contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or any fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall and promptly prepare and furnish to Parent Holdings a supplement or amendment to the prospectus contained in the Shelf Registration Statement so that the Shelf Registration Statement shall not, and such Prospectus so that, prospectus as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities shall not, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(vi9) cause all of the Registrable Securities to be listed on each national securities exchange and included in each established over-the-counter market on which or through which the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Laser Common Stock is then listed or traded;
(including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s10) in connection with performing due diligence) and (iii) cause its counsel to issue opinions a sale of counsel in formRegistrable Securities by or through an underwriter, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by PurchaserParent Holdings, any underwriter participating in any disposition pursuant to a the Shelf Registration Statement, and any attorney, accountant or other agent retained by Purchaser Parent Holdings or its underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the CompanyLaser as shall be reasonably necessary to enable either of them to exercise their due diligence responsibility, and cause the Company’s Laser's officers, directors, employees employees, attorneys and independent accountants to supply all information reasonably requested by PurchaserParent Holdings, any underwriterits underwriters, any attorneyattorneys, any accountant accountants or any agent agents in connection with such the Shelf Registration Statement; information which Laser determines, in good faith, to be confidential shall not be disclosed by such persons unless (i) the disclosure of such information is required by applicable federal securities laws or is necessary to avoid or correct a misstatement or omission in such Shelf Registration Statement or (ii) the release of such information is ordered pursuant to a subpoena or other order from a court of competent jurisdiction; Parent Holdings agrees, on its own behalf and on behalf of all of its underwriters, accountants, attorneys and agents, that the information obtained by any of them as a result of such inspections shall be deemed confidential unless and until such is made generally available to the public; Parent Holdings further agrees, on its own behalf and on behalf of all of its underwriters, accountants, attorneys and agents, that Parent Holdings will, upon learning that disclosure of such information is sought in a court of competent jurisdiction, give notice to Laser and allow Laser, at Parent Holdings' expense, to undertake appropriate action to prevent disclosure of the information deemed confidential; nothing contained herein shall require Laser to waive any attorney-client privilege or disclose attorney work product;
(ix11) use its reasonable best efforts to cause comply with all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior applicable laws related to the pricing of any underwritten offering, immediately prior to effectiveness of each Shelf Registration Statement (and, in the case of an underwritten offering, at the time of closing of the and offering and sale of Registrable Common Stock pursuant thereto)securities and all applicable rules and regulations of governmental authorities in connection therewith (including, letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriterwithout limitation, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable Exchange Act, and the rules and regulations adopted promulgated by the SEC thereunder, SEC) and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement security holders as soon as reasonably practicable (but in any event not later than fifteen (15) months after the end effectiveness of such period, which the Shelf Registration Statement) an earnings statement shall satisfy the requirements of an earning statement under Laser and its subsidiaries complying with Section 11(a) of the Securities Act;
(12) in connection with a sale of Registrable Securities by or through an underwriter, use reasonable best efforts to furnish to Parent Holdings a signed counterpart of (x) an opinion of counsel for Laser (including a "Rule 10b-5" opinion) and (y) a "comfort" letter signed by the independent public accountants who have certified Laser's financial statements included or incorporated by reference in such registration statement, covering such matters with respect to such registration statement and, in the case of the accountants' comfort letter, with respect to events subsequent to the date of such financial statements as are customarily covered in opinions of issuer's counsel and in accountants' comfort letters delivered to the underwriters in underwritten public offerings of securities for the account of, or on behalf of, an issuer of common stock, such opinion and comfort letters to be dated the date that such opinion and comfort letters are customarily dated in such transactions; and
(xiii13) promptly notify Purchaser and take other actions as Parent Holdings or the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to expedite or facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewSecurities.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with the Company's registration and sale of Registrable Common Stock pursuant to this Agreementobligations hereunder, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicableshall:
(ia) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or Prospectus, any amendments or supplements thereto (including or any prospectus supplement for a shelf takedown)Issuer Free Writing Prospectus, at the Company's expense, furnish to Purchaser and the underwriter or underwritersHolders, if any, copies of all such documents, other than documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits that are incorporated by reference, proposed to be filed and Purchaser (such other documents reasonably requested by the Holders and the underwriter(s), if any) shall have the provide a reasonable opportunity to for review and comment thereon, and on such documents by the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoHolders;
(iib) notify each Holder of Registrable Shares of the effectiveness of the Registration Statement;
(c) prepare and file with the SEC Commission such amendments and supplements to such the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, Term; provided, however, that the Company Company's obligations under this Section 2.2(b) 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 Companynot apply during any Suspension Period;
(ivd) use its reasonable best efforts if the number of Registrable Shares at any time exceeds the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Deadline, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Shares.
(e) furnish to each Holder who holds Registrable Shares covered by such Registration Statement (each, a "Selling Holder"), without charge, at least one conformed copy of the Registration Statement and any amendment thereto (which obligation shall be deemed satisfied if such material is available through ▇▇▇▇▇ or on or through the Company's website), but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits;
(f) (i) register or qualify such Registrable Common Stock Shares under such other securities or blue sky laws of such jurisdictions as any Selling Holder reasonably requests, (domestic ii) keep such registration or foreignqualification in effect for so long as the applicable Registration Statement remains in effect, and (iii) as Purchaser and any underwriter(s) reasonably requests and use its commercially reasonable efforts to do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such Selling Holder to consummate the disposition in such jurisdictions of the Registrable Common Stock Shares owned by such Selling Holder in a manner substantially similar to those set forth in the Plan of Distribution (provided, that nothing contained herein or in the Plan of Distribution shall require the Company will not be required to (1w) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)subsection, (2x) subject itself to taxation in any such jurisdiction or jurisdiction, (3y) consent to general service of process in any such jurisdictionjurisdiction or (z) participate in or effect any underwritten offering on behalf of or for the Holders of Registrable Shares);
(vg) notify Purchaser and any underwriter(s)each Selling Holder, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence happening of any event as a result of which any the Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s)such Selling Holder, the Company shall will prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Shares, such Prospectus shall will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiiih) promptly notify Purchaser and in the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) event of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the a Registration Statement; and
(4) of the receipt by the Company , or of any notification with respect to order suspending or preventing the suspension use of any related Prospectus or suspending the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be Shares included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate sale in any 12 month period. If the Company shall give Purchaser any Suspension Noticejurisdiction, the Company shall extend will notify each Selling Holder and use commercially reasonable efforts to obtain the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving withdrawal of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodorder.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. Tenant shall furnish to Landlord, without charge, as many copies of each Prospectus or Prospectuses (aincluding each form of prospectus) In connection with the registration and sale each amendment or supplement thereto as Landlord may reasonably request. Prior to any public offering of Registrable Common Stock pursuant to this Agreementregistrable securities, the Company Tenant shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify or cooperate with Landlord in connection with the registration or qualification (or exemption from such Registrable Common Stock registration or qualification) of such registrable securities for offer and sale under such other the securities or blue sky Blue Sky laws of all jurisdictions within the United States, to keep each such jurisdictions registration or qualification (domestic or foreignexemption therefrom) as Purchaser effective during the Effectiveness Period and any underwriter(s) reasonably requests and to do any and all other acts and or things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (registrable securities covered by the Registration Statements; provided, that the Company will Tenant shall not be required to (1) qualify generally to do business in any jurisdiction where it would is not otherwise be required then so qualified or subject Tenant to qualify but for this subparagraph (iv), (2) subject itself to taxation any material tax in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto where it is required to be delivered under the Securities Act, of not then so subject. Upon the occurrence of any event as a result or passage of which time that makes the financial statements included in the Registration Statement ineligible for inclusion therein or any statement made in the Registration Statement or Prospectus contains an or any document incorporated or deemed to be incorporated therein by reference untrue statement of a material fact or omits in any material fact necessary respect or that requires any revisions to make the statements therein not misleadingRegistration Statement, and, at the request of Purchaser Prospectus or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus other documents so that, in the case of the Registration Statement or the Prospectus, as thereafter supplemented and/or amendedthe case may be, such Prospectus shall it will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form)Tenant shall, (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon promptly as reasonably practicable after the end of such periodpossible, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter prepare a supplement or underwritersamendment, if any:
(1) when the Registration Statement, any preincluding a post-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or a supplement to the related Prospectus or any post-effective amendmentdocument incorporated or deemed to be incorporated therein by reference, when the same has become effective;
(2) of and file any written request by the SEC for amendments or supplements to other required document so that, as thereafter delivered, neither the Registration Statement or any nor such Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall will contain any an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading misleading. If in accordance with (except i) any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement covering any or all of the registrable securities or the initiation of any proceedings for that purpose; or (iii) the receipt by the Company makes no representation or warranty of any notification with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf suspension of the Company to the SEC qualification or the staff exemption from qualification of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference thereinregistrable securities for sale in any jurisdiction, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing initiation or threatening of any supplement or amendment proceeding for such purpose, Tenant notifies Landlord to such Shelf Registration Statement or suspend the use of any Prospectus supplement. The Company will promptly respond until the requisite changes to any and all comments received from the SECsuch Prospectus have been made, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and then Landlord shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution suspend use of such securities as the Company reasonably determines, based on the advice of counsel, is required Prospectus. Tenant will use its best efforts to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company ensure that the use of the Prospectus may be resumed as promptly as is practicable. Tenant shall be entitled to exercise the right to suspend the availability of a Registration Statement and is furnished with Prospectus for a supplemented or amended Prospectus as contemplated by Section 8(aperiod not to exceed 60 days (which need not be consecutive days) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Lease Agreement (Aerogen Inc)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to Whenever required under this Agreement, the Company shall use its reasonable best efforts Agreement to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofShares, and pursuant thereto the Company shall shall, as expeditiously as reasonably practicablepossible:
(ia) prepare Prepare and file with the SEC Securities and Exchange Commission (the "Commission") a registration statement on Form S-1 or Form S-3 (or such other successor "short-form" as may be authorized by the Commission at that time), as appropriate, relating to the sale of the Shares by the Purchasers (the "Registration Statement with respect to such Registrable Common Stock Statement"), and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoeffective;
(iib) Promptly prepare and file with the SEC Commission such amendments and supplements to such the Registration Statement and the Prospectus prospectus used in connection therewith as may be therewith, to the extent necessary to keep such the Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen one hundred eighty (18180) months, in the case of a Shelf Registration Statement days (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter lesser period as is necessary for the underwriters in an underwritten offering to complete the distribution of the securities covered by such Registration Statement sell unsold allotments) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during such period in accordance with the intended methods of disposition by Purchaser the sellers thereof set forth in such Registration Statement andregistration statement; provided, in however, that the case of Company will not be required pursuant to this Agreement to effect a shelf registration pursuant to Rule 415 promulgated under the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownSecurities Act;
(iiic) furnish Furnish to Purchaser the Purchasers with respect to the Shares registered under the Registration Statement (and to each underwriter, if any, of such Shares) such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus the prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplement) prospectus), any documents incorporated by reference therein and such other documents as Purchaser and any underwriter(sthe Purchasers (or such underwriter) may reasonably request request, in order to facilitate the public sale or other disposition of all or any of the Registrable Common StockShares by the Purchasers (it being understood that, provided, however, that subject to the Company shall have no such obligation to furnish copies requirements of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied and applicable state securities laws, the Company consents to the use of the prospectus and any amendment or supplement thereto by the CompanyPurchaser and the underwriters in connection with the offering and sale of the Shares covered by the registration statement of which such prospectus, amendment or supplement is a part);
(ivd) use Use its commercially reasonable best efforts to register or qualify such Registrable Common Stock Shares under such other securities or blue sky laws of such jurisdictions as the managing underwriter or underwriters reasonably request (domestic or, in the event the registration statement does not relate to an underwritten offering, as the holders of a majority of such Shares may reasonably request); use its commercially reasonable efforts to keep each such registration or foreignqualification (or exemption therefrom) as Purchaser and any underwriter(s) reasonably requests effective during the period in which such registration statement is required to be kept effective; and do any and all other acts and things that which may be reasonably necessary or advisable to enable the Purchaser and any underwriter(s) to consummate the disposition of the Shares owned by the Purchaser in such jurisdictions of the Registrable Common Stock (provided, however, that the Company will not be required to (1A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3B) consent to general service of process in any such jurisdiction);
(ve) Promptly notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, underwriter and (if any, stating that requested by any such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise Person) confirm such notice in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
writing (xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1A) when the Registration Statement, any pre-effective amendment, the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective;
, (2B) of the issuance by any written request by state securities or other regulatory authority of any order suspending the SEC qualification or exemption from qualification of any of the Shares under state securities or "blue sky" laws or the initiation of any proceedings for amendments or supplements to that purpose, and (C) of the happening of any event which makes any statement made in a Registration Statement or any Prospectus related prospectus untrue or which requires the making of any inquiry by the SEC relating to the Registration Statement changes in such registration statement, prospectus or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants documents so that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall they will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) misleading, and, as promptly after the same is prepared as practicable thereafter, prepare and publicly distributed, filed file with the SEC, or received by the Company, one copy of each Registration Statement Commission and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including furnish a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryprospectus so that, as soon as practicable following thereafter deliverable to the resolution or clearance purchasers of all SEC comments orsuch Shares, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto prospectus will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company contain any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any omit a material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading misleading;
(f) Make generally available to the Company's securityholders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than thirty (30) days after the end of the twelve (12) month period beginning with the first day of the Company's first fiscal quarter commencing after the effective date of a “Suspension Notice”registration statement, which earnings statement shall cover said twelve (12) month period, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
(g) If requested by the managing underwriter or underwriters or the Purchaser, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters or the Purchaser reasonably requests to be included therein, including, without limitation, with respect to the Shares being sold by the Purchaser, the purchase price being paid therefor by the underwriters and with respect to any other terms of the underwritten offering of the Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(h) As promptly as practicable after filing with the Commission of any document which is incorporated by reference into a Registration Statement (in the form in which it was incorporated), deliver a copy of each such document to the Purchaser;
(i) Cooperate with the Purchaser will forthwith discontinue and the managing underwriter or underwriters to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing securities sold under any Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters or the Purchaser may request and keep available and make available to the Company's transfer agent prior to the effectiveness of such registration statement a supply of such certificates;
(j) Promptly make available for inspection by the Purchaser, any underwriter participating in any disposition of Registrable Common Stock pursuant to such any Registration Statement for a reasonable length Statement, and any attorney, accountant or other agent or representative retained by any the Purchaser or underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that (collectively, the use of "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Prospectus may be resumed Company's officers, directors and is furnished employees to supply all information requested by any such Inspector in connection with a supplemented or amended Prospectus as contemplated by Section 8(a) hereofsuch registration statement; provided, howeverthat, that unless the disclosure of such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days Records is necessary to avoid or correct a misstatement or omission in the aggregate in any 12 month period. If registration statement or the Company shall give Purchaser any Suspension Notice, the Company shall extend the period release of time during which the Company such Records is required to maintain the applicable Registration Statements effective ordered pursuant to this Agreement by the number a subpoena or other order from a court of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any eventcompetent jurisdiction, the Company shall not be entitled required to deliver more than a total of three provide any information under this subparagraph (3x) Suspension Notices or notices of any Delay Period in any twelve if (12)-month period.
(fA) The the Company shall not permit any officerbelieves, directorafter consultation with counsel for the Company, underwriter, broker or any other person acting on behalf of that to do so would cause the Company to use forfeit an attorney-client privilege that was applicable to such information, (B) either (1) the Company has requested and been granted from the Commission confidential treatment of such information contained in any free writing filing with the Commission or documents provided supplementally or otherwise or (2) the Company reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing, unless prior to furnishing any such information with respect to (A) or (B) the Purchaser agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions or (C) the information is subject to a confidentiality agreement restricting its disclosure; and provided further, that the Purchaser agrees that it will, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company, at its expense, to undertake appropriate action and to prevent disclosure of the Records deemed confidential;
(k) Furnish to the Purchaser and underwriter a signed counterpart of (A) an opinion or opinions of counsel to the Company, and (B) a comfort letter or comfort letters from the Company's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as the case may be, as the Purchaser or managing underwriter reasonably requests;
(l) Cooperate with the Purchaser and each underwriter participating in the disposition of such Shares and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc.;
(m) During the period when the prospectus (as defined in Rule 405 is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act;
(n) Notify the Purchaser promptly of any request by the Commission for the amending or supplementing of such Registration Statement or prospectus or for additional information;
(o) Prepare and file with the Commission promptly any amendments or supplements to such Registration Statement or prospectus which, in the opinion of counsel for the Company or in the reasonable opinion of counsel for the managing underwriter, is required in connection with the distribution of the Shares;
(p) Enter into such agreements (including underwriting agreements in the managing underwriter's customary form) as are customary in connection with an underwritten registration; and
(q) Advise the Purchaser, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such registration statement covering Registrable Common Stock, without or the prior written consent initiation or threatening of Purchaser any proceeding for such purpose and promptly use its best efforts to prevent the issuance of any underwriterstop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued.
Appears in 1 contract
Sources: Registration Rights Agreement (Vesta Insurance Group Inc)
Procedures. (a) In connection with To the registration extent that any Pledgor at any time or from time to time owns, acquires or obtains any right, title or interest in any Collateral, such Collateral shall automatically (and sale without the taking of Registrable Common Stock any action by the respective Pledgor) be pledged pursuant to Section 3.1 of this AgreementAgreement and, in addition thereto, such Pledgor shall (to the Company shall use its reasonable best efforts to effect extent provided below) take the registration following actions as set forth below (as promptly as practicable and, in any event, within 10 days after it obtains such Collateral) for the benefit of the Pledgee and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicableSecured Creditors:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement Certificated Security (other than a Certificated Security credited on the books of a Clearing Corporation or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedownSecurities Intermediary), furnish the respective Pledgor shall physically deliver such Certificated Security to Purchaser and the underwriter Pledgee, indorsed to the Pledgee or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference indorsed in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoblank;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to an Uncertificated Security (other than an Uncertificated Security credited on the disposition books of a Clearing Corporation or Securities Intermediary), the respective Pledgor shall cause the issuer of such Uncertificated Security to duly authorize and execute, and deliver to the Pledgee, an agreement for the benefit of the Pledgee and the other Secured Creditors substantially in the form of Annex G hereto (appropriately completed to the satisfaction of the Pledgee and with such modifications, if any, as shall be satisfactory to the Pledgee) pursuant to which such issuer agrees to comply with any and all securities covered instructions originated by the Pledgee without further consent by the registered owner and not to comply with instructions regarding such Uncertificated Security (and any Partnership Interests and Limited Liability Company Interests issued by such Registration Statement during such period in accordance with the intended methods issuer) originated by any other Person other than a court of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedowncompetent jurisdiction;
(iii) furnish with respect to Purchaser such number a Certificated Security, Uncertificated Security, Partnership Interest or Limited Liability Company Interest credited on the books of copies a Clearing Corporation or Securities Intermediary (including a Federal Reserve Bank, Participants Trust Company or The Depository Trust Company), the respective Pledgor shall promptly notify the Pledgee thereof and shall promptly take (x) all actions required (i) to comply with the applicable rules of such Registration StatementClearing Corporation or Securities Intermediary and (ii) to perfect the security interest of the Pledgee under applicable law (including, each amendment and supplement theretoin any event, each Prospectus under Sections 9-314(a), (including each preliminary Prospectus and Prospectus supplementb) and (c), 9-106 and 8-106(d) of the UCC) and (y) such other documents actions as Purchaser and any underwriter(s) may reasonably request in order the Pledgee deems necessary or desirable to facilitate effect the disposition of the Registrable Common Stock, 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 Companyforegoing;
(iv) use its reasonable best efforts with respect to register a Partnership Interest or qualify such Registrable Common Stock under such a Limited Liability Company Interest (other securities than a Partnership Interest or blue sky laws Limited Liability Company Interest credited on the books of such jurisdictions (domestic a Clearing Corporation or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedSecurities Intermediary), that the Company will not be required to (1) qualify generally to do business if such Partnership Interest or Limited Liability Company Interest is represented by a certificate and is a Security for purposes of the UCC, the procedure set forth in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)Section 3.2(a)(i) hereof, and (2) subject itself to taxation if such Partnership Interest or Limited Liability Company Interest is not represented by a certificate or is not a Security for purposes of the UCC, the procedure set forth in any such jurisdiction or (3Section 3.2(a)(ii) consent to general service of process in any such jurisdiction)hereof;
(v) notify Purchaser and with respect to any underwriter(s)Note, at any time when a Prospectus relating thereto is required physical delivery of such Note to be delivered under the Securities ActPledgee, of indorsed to the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact Pledgee or omits any material fact necessary to make the statements therein not misleading, indorsed in blank; and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) after an Event of Default has occurred and is continuing, with respect to cash, to the extent not otherwise provided for in the case of an underwritten offeringUS Security Agreement, (i) enter into establishment by the Pledgee of a cash account in the name of such customary agreements Pledgor over which the Pledgee shall have "control" within the meaning of the UCC (including underwriting agreements in customary form), and no withdrawals or transfers may be made therefrom by any Person except with the prior written consent of the Pledgee) and (ii) deposit of such cash in such cash account.
(b) In addition to the actions required to be taken pursuant to preceding Section 3.2(a) hereof, each Pledgor shall take the following additional actions with respect to the Securities and Collateral:
(i) with respect to all Collateral of such Pledgor whereby or with respect to which the Pledgee may obtain "control" thereof within the meaning of Section 8-106 of the UCC (or under any provision of the UCC as same may be amended or supplemented from time to time, or under the laws of any relevant State other than the State of New York), the respective Pledgor shall take all such other actions as Purchaser or may be requested from time to time by the underwriter(s) reasonably request in order to expedite or facilitate the disposition Pledgee so that "control" of such Registrable Common Stock Collateral is obtained and at all times held by the Pledgee; and
(ii) each Pledgor shall from time to time cause appropriate financing statements (on Form UCC-1 or other appropriate form) under the Uniform Commercial Code as in effect in the various relevant States (with the form of such financing statements to be satisfactory to the Pledgee), to be filed in the relevant filing offices so that at all times the Pledgee has a security interest in all Investment Property and other Collateral which is perfected by the filing of such financing statements (in each case to the maximum extent perfection by filing may be obtained under the laws of the relevant States, including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one9-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a312(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use thereinUCC).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with Whenever the registration and sale of Stockholders request that any Registrable Common Stock be registered or sold pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s the intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and at least five (5) Business Days before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the Stockholders and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthe Stockholders, the exhibits incorporated by reference, and Purchaser the Stockholders (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser the Stockholders (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in EXECUTION VERSION connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, as set forth in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period)Section 2 hereof, or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Stockholders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Stockholders or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser the Stockholders such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser the Stockholders and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable (in light of the Company's status as OTC-Other) to enable Purchaser the Stockholder and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) promptly notify Purchaser the Stockholders and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the Stockholders or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Common Stock, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;; EXECUTION VERSION
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser the Stockholders or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser the Stockholders and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserthe Stockholders;
(vii) in connection with each any Demand Registration pursuant to Section 3 2 and each Fully Marketed Underwritten Offering requested by Purchaser the Stockholders under Section 22 or 3, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaserthe Stockholders, any underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser the Stockholders or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserthe Stockholders, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed or qualified on NASDAQ, or any each securities exchange on which securities of the same class issued by the Company are then listed or traded or, if no such similar securities are then listedlisted or traded, on Nasdaq or a national securities exchange selected by on which the Company Registrable Common Stock may be listed and agreed to by Purchasertraded;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s 's independent registered public EXECUTION VERSION accountants addressed to Purchaser the Stockholders and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;; and
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser the Stockholders and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerProspectus;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser the Stockholders furnished to the Company by or on behalf of Purchaser the Stockholders specifically for use therein).
(c) The Company shall make available to Purchaser the Stockholders (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the EXECUTION VERSION SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference thereinStatement, and (ii) such number of copies of each a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Stockholders or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser the Stockholders of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplementamendment. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, request as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Stockholders to furnish to the Company any other information regarding Purchaser the Stockholders and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser the Stockholder and any underwriterunderwriter 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 Stockholders are parties shall be deemed to satisfy the requirement for such consent.
Appears in 1 contract
Sources: Registration Rights Agreement (Transtechnology Corp)
Procedures. (a) In connection with Upon receipt of a Request from the registration and sale of Registrable Common Stock Shareholder or another GFL Group entity pursuant to the provisions of this AgreementArticle 5, the Company Corporation shall use its reasonable best commercial efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofQualification, and pursuant thereto in particular, the Company shall as expeditiously as reasonably practicableCorporation shall:
(ia) prepare, sign and file (in any event within forty-five (45) days after the Request has been delivered to the Corporation) the preliminary prospectus and such other related documents as may be necessary to be filed in connection with any such preliminary prospectus and shall, as soon as possible after any comments of the Canadian Securities Commissions have been satisfied with respect thereto, prepare and file under and in compliance with the Canadian Securities Laws a final prospectus, and use its commercially reasonable efforts to cause a receipt to be issued for such prospectuses to be effective as soon as possible and shall take all other steps and proceedings that may be necessary in order to qualify the Qualifiable Securities under the applicable Canadian Securities Laws for distribution by registrants who comply with the relevant provisions of the Canadian Securities Laws (provided that, before filing all such documents referred to in this provision, the Corporation shall furnish to counsel to the Shareholder copies thereof and otherwise comply with the provisions hereof);
(b) prepare, sign and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and applicable Canadian Securities Commissions in the underwriter or underwriters, if any, copies of all such documents proposed jurisdictions in which the Qualification is to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC effected all such amendments and supplements to such Registration Statement preliminary prospectus and the Prospectus used in connection therewith prospectus as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the applicable Canadian Securities Act Laws with respect to the disposition distribution of all securities covered by the Qualifiable Securities, and to take such Registration Statement during steps as are necessary to maintain the qualification of such period in accordance prospectus until the earlier of either:
(i) the time at which the distribution of the Qualifiable Securities sought to be sold is completed; or
(ii) the date which is forty-two (42) days immediately following the date on which the prospectus is filed with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, applicable Canadian Securities Commissions in the case of jurisdictions in which the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may Qualification is to be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedowneffected;
(iiic) furnish cause to Purchaser be furnished to the Shareholder and any such other GFL Group entity and such other persons as the Shareholder may reasonably specify:
(i) such number of copies of such Registration Statement, each amendment prospectuses and supplement thereto, each Prospectus any amendments and supplements thereto (including each preliminary Prospectus and Prospectus supplementany documents incorporated therein by reference) and such other relevant documents as Purchaser and any the underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common StockQualifiable Securities;
(ii) an opinion of counsel to the Corporation, providedsubject to customary assumptions and qualifications, howeveraddressed to the Shareholder and any such other GFL Group entity and the underwriter(s) of such offering and dated the closing date of the offering as to the Corporation’s legal status and capacity, that the Company shall have no Corporation’s authorized capital, the valid issuance of the Qualifiable Securities, the enforceability against the Corporation of any underwriting agreement to which the Corporation is a party, the qualification of the distributions of the Qualifiable Securities, and such obligation other customary matters as the Shareholder or any such underwriters may reasonably require;
(iii) a non-statutory “comfort” letter addressed to furnish copies the underwriters dated the date of a final the prospectus if and the conditions closing date of Rule 172(c) under the Securities Act are satisfied offering signed by the Company;auditors of the Corporation in respect of the financial information contained in the prospectus; and
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under corporate certificates as are customarily furnished in securities offerings, and, in each case, covering substantially the same matters as are customarily covered in such documents in the relevant jurisdictions and such other securities matters as the Shareholder or blue sky laws of any such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) may reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction)request;
(vd) notify Purchaser use its commercially reasonable efforts to comply with the Canadian Securities Laws and any underwriter(s)the rules, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence regulations and policies of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingapplicable stock exchange;
(vie) cause all such Qualifiable Securities sought to be sold to be listed on each securities exchange or over-the-counter market on which the Shares are then listed, if not already so listed;
(f) in the case event of an underwritten offeringthe issuance of any order or ruling suspending the effectiveness of a prospectus receipt or any order suspending or preventing the use of any prospectus or suspending the qualification or the distribution of any of the Qualifiable Securities qualified by such prospectus for sale in any applicable Canadian provinces, the Corporation shall promptly notify the Shareholder and any such other GFL Group entity of such event and use its commercially reasonable efforts promptly to obtain the withdrawal of such order or ruling. The Corporation shall promptly notify the Shareholder and such other GFL Group entity of the withdrawal of any such order or ruling; and
(i) enter into such customary agreements (including underwriting agreements in customary form), (iig) take all such other commercially reasonable actions as Purchaser permitted by law that the Shareholder or the underwriter(s) any such other GFL Group entity reasonably request requests in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management re-sale of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued Qualifiable Securities by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter Shareholder or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewGFL Group entity.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with Registration Procedures and Obligations. Whenever required under this Section 6 to effect the registration and sale Registration of any Registrable Common Stock pursuant to this AgreementSecurities held by the Holders, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofshall, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare Prepare and file with the SEC Commission a Registration Statement with respect to such those Registrable Common Stock Securities and use its reasonable best efforts to if applicable, cause such that Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and remain continuously effective until the underwriter or underwriters, if any, copies of date on which all such documents proposed Registrable Securities have been sold pursuant to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoStatement;
(ii) prepare Prepare and file with the SEC such Commission amendments and supplements to such that Registration Statement and the Prospectus prospectus used in connection therewith with the Registration Statement as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Applicable Securities Act Law with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish Furnish to Purchaser such the Holders the number of copies of such Registration Statementa prospectus, each amendment including a preliminary prospectus, required by Applicable Securities Law, and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such any other documents as Purchaser and any underwriter(s) they may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 owned by the Companythem;
(iv) use Use its reasonable best efforts to register or Register and qualify such the Registrable Common Stock Securities covered by the Registration Statement under such other the securities or blue sky laws of such jurisdictions (domestic or foreign) any jurisdiction, as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate requested by the disposition in such jurisdictions of the Registrable Common Stock (providedHolders, provided that the Company will shall not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) file a general consent to general service of process in any such jurisdiction);
(v) notify Purchaser In the event of any underwritten public offering, enter into and any underwriter(s)perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of the offering;
(vi) Notify each Holder of Registrable Securities covered by the Registration Statement at any time when a Prospectus prospectus relating thereto is required to be delivered under the Applicable Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact Law or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which any prospectus included in the Prospectus included (or deemed included) Registration Statement, as then in such Registration Statement contains effect, includes an untrue statement of a material fact or omits any to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing;
(vii) Provide a “Suspension Notice”)transfer agent and registrar for all Registrable Securities Registered pursuant to the Registration Statement and, Purchaser will forthwith discontinue disposition where applicable, a CUSIP number for all those Registrable Securities, in each case not later than the effective date of the Registration;
(viii) Use its commercially best efforts to furnish, at the request of any Holder requesting Registration of Registrable Common Stock pursuant to Securities, on the date that such Registration Statement Registrable Securities are delivered for a reasonable length of time not to exceed 10 days (45 days sale in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished connection with a supplemented or amended Prospectus as contemplated by Section 8(aRegistration, (i) hereof; providedan opinion, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including dated the date of the giving sale, of such Suspension Notice the counsel representing the Company for the purposes of the Registration, in form and substance as is customarily given to underwriters in an underwritten public offering; and including (ii) a comfort letter dated the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives sale, from the copies independent certified public accountants of the supplemented or amended Prospectus contemplated Company, in form and substance as is customarily given by Section 8(a) (a “Blackout Period”). In any eventindependent certified public accountants to underwriters in an underwritten public offering, addressed to the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.underwriters; and
(fix) The Company shall not permit any officer, director, underwriter, broker or any other person acting Take all reasonable action necessary to list the Registrable Securities on behalf the stock exchange upon which the shares of the Company to use any free writing prospectus (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Company’s Common Stock, without the prior written consent of Purchaser and any underwriterStock are traded.
Appears in 1 contract
Sources: Investor and Registration Rights Agreement (Yayi International Inc)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock Ordinary Shares pursuant to this Agreement (but excluding the registration and sale of Registrable Ordinary Shares pursuant to the PIPE Purchase Agreement), the Company shall use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Ordinary Shares in accordance with Purchaserthe Investor’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock Ordinary Shares and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the Investor and the underwriter or underwritersunderwriter(s), if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthe Investor, the exhibits incorporated by reference, and Purchaser the Investor (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser the Investor (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) monthsthree years, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Investor thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Investor or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser the Investor such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser the Investor and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common StockOrdinary 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;
(iv) use its commercially reasonable best efforts to register or qualify such Registrable Common Stock Ordinary Shares under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser the Investor and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser the Investor and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock Ordinary Shares (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser the Investor and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the Investor or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser the Investor or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock Ordinary Shares (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser the Investor and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel and negative assurance letters in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserthe Investor;
(vii) in connection with each Demand Registration pursuant to Section 3 and each a Fully Marketed Underwritten Offering requested by Purchaser the Investor under Section 2, cause there to occur Full Cooperation and, in all other cases, cause appropriate members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers)therewith;
(viii) make available for inspection by Purchaserthe Investor, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser the Investor or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserthe Investor, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its commercially reasonable best efforts to cause all such Registrable Common Stock Ordinary Shares to be listed on NASDAQ, or any each securities exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a Nasdaq or the NYSE or other national securities exchange selected by the Company and agreed to by PurchaserCompany;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Ordinary Shares not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock Ordinary Shares pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser the Investor and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings, which, in connection with a Fully Marketed Underwritten Offering, shall be at the Investor’s expense;
(xii) make generally available to Purchaser and its Affiliates Investors a consolidated earnings income statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings income statement shall satisfy the requirements of an “earning statement statement” under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser the Investor and the underwriter or underwritersunderwriter(s), if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or or, if applicable, the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Ordinary Shares for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser the Investor furnished to the Company by or on behalf of Purchaser the Investor specifically for use therein).
(c) The Company shall make available to Purchaser the Investor (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy copies of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Investor or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common StockOrdinary Shares. The Company will promptly notify Purchaser the Investor of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Investor to furnish to the Company any other information regarding Purchaser the Investor and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser The Investor agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser the Investor will forthwith discontinue disposition of Registrable Common Stock Ordinary Shares pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in until the case of an event described in Section 3(d)) until Purchaser Investor is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a6(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock Ordinary Shares by Purchaser the Investor shall not exceed ninety forty-five (9045) days in the aggregate in any 12 month period. If the Company shall give Purchaser gives the Investor any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Investor either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a6(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month 12 month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common StockOrdinary Shares, without the prior written consent of Purchaser the Investor and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with The Company will, subject to the registration and sale of Registrable Common Stock pursuant to this Agreementlimitations provided herein, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(ia) prepare and file with the SEC a Registration Statement with respect the requisite registration statement to effect such Registrable Common Stock registration, and thereafter, use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereaftereffective; and provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (thereto, including any prospectus supplement for a shelf takedown)documents incorporated by reference, the Company will furnish to Purchaser counsel to the Holders of the Registrable Securities covered by such registration statement and the managing underwriter or underwriters, if any, draft copies of all such documents proposed to be filedfiled (other than exhibits, including unless so requested) a reasonable time prior thereto, which documents incorporated by reference in will be subject to the Prospectus and, if requested by Purchaser, the exhibits incorporated by referencereasonable review of such counsel and such Holders and underwriters, and Purchaser (will notify each Holder of the Registrable Securities of any stop order issued by the SEC in connection therewith and the underwriter(s), if any) shall have the opportunity take all reasonable actions required to review and comment thereon, and the Company will make remove such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretostop order;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, registration statement; provided, however, that the Company shall not in any event be required to keep a registration statement filed pursuant to Section 2.1 effective for a period of more than nine months after such registration statement becomes effective; and provided further that the Company may, at any time, delay the filing or suspend the effectiveness of any registration under this Agreement, or without suspending such effectiveness, instruct the Purchasers not to sell any Registrable Securities included in any such registration, (i) if the Company shall have no determined upon the advice of counsel that the Company would be required to disclose any actions taken or proposed to be taken by the Company in good faith and for valid business reasons, including without limitation, the acquisition or divestiture of assets, which disclosure would have a material adverse effect on the Company or on such obligation actions, or (ii) if required by law, to update the prospectus relating to any such registration to include updated financial statements (a "Suspension Period") by providing the Purchasers with written notice of such Suspension Period and the reasons therefor; provided, however, that the Company will not be required to disclose such reasons with particularity if an authorized executive officer of the Company certifies that the Company believes it is required by law to delay the filing or suspend the effectiveness of any such registration. In addition, the Company shall not be required to keep any registration effective, or may without suspending such effectiveness, instruct the Purchasers if it has Registrable Securities included in such registration not to sell such securities, during any period which the Company is instructed, directed, ordered or otherwise requested by any governmental agency or self-regulatory organization to stop or suspend such trading or sales ("Supplemental Extension Period"). In the event of a Suspension Period or Supplemental Extension Period, the period during which any registration under this Agreement is to remain effective pursuant to this Section 3.1(b) shall be tolled until the end of any such Suspension Period or Supplemental Extension Period. The Company will use reasonable efforts to restrict any Suspension Period or Supplemental Extension Period to less than 60 days;
(c) furnish to the Purchasers such number of conformed copies of a final such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus if the conditions of contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 172(c) 424 under the Securities Act are satisfied by Act, and such other documents, as the CompanyPurchasers may reasonably request;
(ivd) use its reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic as each seller thereof shall reasonably request and to keep such registration or foreign) qualification in effect for so long as Purchaser such registration statement remains in effect, and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such seller, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 3.1(d) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction).
(e) use its reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Purchasers to consummate the disposition of such Registrable Securities;
(vf) notify Purchaser and any underwriter(s)in writing the Purchasers, if Registrable Securities are covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, and at the request of Purchaser or any underwriter(s), the Company shall Purchasers prepare and furnish to the Purchasers a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date purchasers of such Registration Statement;
(xi) if requestedsecurities, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of such prospectus shall not include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to light of the Company by or on behalf of Purchaser specifically for use therein)circumstances under which they were made.
(cg) The Company shall otherwise use reasonable efforts to comply with all applicable rules and regulations of the SEC and make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following the resolution or clearance of all SEC comments orreasonably practicable, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue earnings statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend covering the period of time during which at least twelve months beginning with the Company is required to maintain first full calendar month after the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of such registration statement, which earnings statement shall satisfy the giving provisions of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use Section 11(a) of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act;
(h) in connection with any provide and cause to be maintained a transfer agent for all Registrable Securities covered by such registration statement covering from and after a date not later than the effective date of such registration statement; and
(i) use its reasonable efforts to list all Registrable Securities covered by such registration statement on any securities exchange on which any of the Company's Common Stock, without the prior written consent of Purchaser and any underwriterStock is then listed.
Appears in 1 contract
Procedures. (a) In connection with If and whenever the Company effects the registration and sale of any Registrable Common Stock pursuant to this AgreementSecurities as provided herein, the Company shall use its reasonable best efforts shall, subject to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablelimitations provided herein:
(i) prepare and file with the SEC a Registration Statement with respect if requested, prior to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement registration statement or Prospectus prospectus or any amendments amendment or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, furnish to Purchaser the selling Holders and the underwriter or underwriterseach underwriter, if any, of the Registrable Securities covered by such registration statement copies of all such documents registration statement, prospectus, any amendment or supplement thereto as proposed to be filed, including and such other documents incorporated by reference in the Prospectus and, if reasonably requested by Purchaser, the exhibits incorporated by reference, such Holder and Purchaser (and the underwriter(s), if any) shall have the provide a reasonable opportunity to for review and comment thereonon such documents by such Holder and its counsel, and the Company will shall consider all such comments in good faith and make changes to such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) document with respect to information concerning such Holder prior to the filing thereof, as any Registration Statement such Holder or amendment thereto or any Prospectus or any supplement theretoits counsel shall reasonably request;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement any registration statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during registration statement until such period time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by Purchaser the Holders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownregistration statement;
(iii) furnish to Purchaser the Holders of Registrable Securities covered by such registration statement such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such Registration Statement, each amendment and supplement thereto, each Prospectus registration statement (including each preliminary Prospectus prospectus and Prospectus supplementany summary prospectus) and any other prospectus filed under Rule 424 under the Securities Act, and such other documents documents, as Purchaser and any underwriter(s) the Holders may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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 Companyrequest;
(iv) use its commercially reasonable best efforts to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions as the Holders shall reasonably request (domestic the “Blue Sky Laws”), to keep such registration or foreign) qualification in effect for so long as Purchaser such registration statement remains in effect, and take any underwriter(s) reasonably requests and do any and all other acts and things that action which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) the Holders to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by the Holders, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph (iv), (2Section 4(b)(iv) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction);
(v) use its commercially reasonable efforts to cause all Registrable Securities covered by such registration statement to be registered with or approved by such other United States Federal or state governmental agencies or authorities as may be necessary to enable the Holders thereof to consummate the disposition of such Registrable Securities;
(vi) promptly notify Purchaser and any underwriter(s)the Holders of Registrable Securities covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus contains which, the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, and at the request of Purchaser or any underwriter(s)the Holders, prepare and furnish to the Company shall prepare Holders a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date purchasers of such Registration Statement;
(xi) if requestedsecurities, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of such prospectus shall not include an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading misleading;
(except that vii) after the filing of the registration statement, promptly notify the Holders of any stop order issued or, to its knowledge, threatened by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered;
(viii) provide and cause to be maintained a transfer agent for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration statement;
(ix) use its commercially reasonable efforts to list all Registrable Securities covered by such registration statement on any national or regional securities exchange or quoting service on which any of the Common Stock is then listed or quoted, including any over-the-counter trading activity;
(x) the Company makes no representation will make reasonably available for inspection by the Holders requesting registration of Registrable Securities, any underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or warranty with respect to information relating to Purchaser furnished to other professional retained by the Holders or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the “Records”) as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all information reasonably requested by or on behalf of Purchaser specifically for use therein).
(c) The any Inspectors in connection with such registration statement. Records which the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall make available to Purchaser not be disclosed by the Inspectors unless (i) promptly after the same disclosure of such Records is prepared and publicly distributed, filed with the SEC, necessary to avoid or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment correct a misstatement or supplement thereto, each letter written by omission in such registration statement or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) the release of such number Records is ordered pursuant to a subpoena or other order from a court of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stockcompetent jurisdiction. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective Holders agree that information obtained by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event it as a result of which such inspections shall be deemed confidential and shall not be used by it as the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits basis for any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days market transactions in the case securities of an event described in Section 3(d)the Company or its affiliates unless and until such is made generally available to the public;
(xi) until Purchaser is advised in writing the Company will otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC;
(xii) upon the transfer of any Registrable Securities by the Company that the use of the Prospectus may be resumed and is furnished Holders in connection with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Noticeregistration hereunder, the Company shall extend furnish unlegended certificates representing ownership of the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement Registrable Securities in such denominations as shall be requested by the number of days during Holders or the period from and including underwriters; and
(xiii) use commercially reasonable efforts to take all other actions necessary or customarily taken by issuers to effect the date registration of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus Registrable Securities contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodhereby.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (XTI Aerospace, Inc.)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock Ordinary Shares pursuant to this Agreement, the Company shall use its commercially reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Ordinary Shares in accordance with Purchaserthe Investor’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock Ordinary Shares and use its commercially reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the Investor and the underwriter or underwritersunderwriter(s), if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthe Investor, the exhibits incorporated by reference, and Purchaser the Investor (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser the Investor (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 180 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) monthsthree years, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Investor thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Investor or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser the Investor such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser the Investor and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common StockOrdinary 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;
(iv) use its commercially reasonable best efforts to register or qualify such Registrable Common Stock Ordinary Shares under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser the Investor and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser the Investor and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock Ordinary Shares (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser the Investor and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the Investor or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser the Investor or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock Ordinary Shares (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser the Investor and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel and negative assurance letters in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserthe Investor;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser the Investor under Section 2, cause there to occur Full Cooperation and, in all other cases, cause appropriate members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers)therewith;
(viii) make available for inspection by Purchaserthe Investor, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser the Investor or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserthe Investor, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its commercially reasonable best efforts to cause all such Registrable Common Stock Ordinary Shares to be listed on NASDAQ, or any each securities exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a Nasdaq or the NYSE or other national securities exchange selected by the Company and agreed to by PurchaserCompany;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Ordinary Shares not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock Ordinary Shares pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser the Investor and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates Investors a consolidated earnings income statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings income statement shall satisfy the requirements of an “earning statement statement” under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser the Investor and the underwriter or underwritersunderwriter(s), if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or or, if applicable, the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Ordinary Shares for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser the Investor furnished to the Company by or on behalf of Purchaser the Investor specifically for use therein).
(c) The Company shall make available to Purchaser the Investor (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy copies of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Investor or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common StockOrdinary Shares. The Company will promptly notify Purchaser the Investor of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Investor to furnish to the Company any other information regarding Purchaser the Investor and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser The Investor agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser the Investor will forthwith discontinue disposition of Registrable Common Stock Ordinary Shares pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 not to exceed 30 days in the case of an event described in Section 3(d)) until Purchaser the Investor is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock Ordinary Shares by Purchaser the Investor shall not exceed ninety forty-five (9045) days in the aggregate in any 12 month period. If the Company shall give Purchaser gives the Investor any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Investor either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month 12 month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common StockOrdinary Shares, without the prior written consent of Purchaser the Investor and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with PurchaserInvestor’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser Investor and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by PurchaserInvestor, the exhibits incorporated by reference, and Purchaser Investor (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser Investor (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser Investor thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser Investor or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser Investor such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser Investor and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser Investor and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser Investor and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser Investor and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser Investor or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser Investor or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser Investor and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and PurchaserInvestor;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser Investor under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by PurchaserInvestor, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser Investor or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by PurchaserInvestor, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by PurchaserInvestor;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser Investor and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser Investor and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser Investor and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser Investor furnished to the Company by or on behalf of Purchaser Investor specifically for use therein).
(c) The Company shall make available to Purchaser Investor (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser Investor or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser Investor of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser Investor to furnish to the Company any other information regarding Purchaser Investor and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser Investor agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser Investor will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser Investor is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser Investor shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser Investor any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser Investor either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser Investor and any underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (Patriot National Bancorp Inc)
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall use its reasonable best efforts is required by the provisions of Section 2 to effect the registration and of any Registrable Securities under the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofSecurities Act, and pursuant thereto the Company shall will, as expeditiously as reasonably practicablepossible:
(ia) prepare and file with the SEC a Registration Statement registration statement with respect to such Registrable Common Stock Securities and use its reasonable best efforts to cause such Registration Statement registration statement to become effective, and keep such registration statement effective for such period as soon as practicable thereafter; and is required by this Agreement, provided that the Company may discontinue any registration of its securities that are not Registrable Securities (and, under the circumstances specified in Section 2.1, its securities that are Registrable Securities), provided, further that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, the Company will furnish to Purchaser and counsel selected by the underwriter or underwriters, if any, Investors of Registrable Securities that are to be included in such registration copies of all such documents proposed to be filed, including which documents incorporated by reference in will be subject to the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to prior review and comment thereon, and the Company will make of such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretocounsel;
(iib) prepare and file with the SEC such amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus and all Free Writing Prospectuses, if any, used in connection therewith with such registration statement as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownregistration statement;
(iiic) furnish to Purchaser the Investors of Registrable Securities included in such registration and each underwriter, if any, of the securities being sold by such Investors, such number of conformed copies of such Registration Statement, registration statement and of each amendment and supplement theretothereto (in each case including all schedules and exhibits), each Prospectus (copies of the prospectus, including each a preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser prospectus, and any underwriter(s) may reasonably request Free Writing Prospectus related to such registration statement, in order to facilitate conformity with the disposition requirements of the Registrable Common Stock, 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 CompanyAct;
(ivd) use its reasonable best efforts to register or and qualify the securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser shall be reasonably requested in writing by the holders of the Registrable Securities included in such registration statement and any underwriter(s) reasonably requests underwriter of such securities, and do take any and all other acts and things that action which may be reasonably necessary or advisable to keep such registration or qualification in effect so as to enable Purchaser such selling Investors and any underwriter(s) underwriters to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such selling Investor, provided that the Company will shall not be required in connection therewith or as a condition thereto to (1) qualify generally to do business as a foreign corporation or to file a general consent to service of process in any jurisdiction where such jurisdictions or to take any action which would subject it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction)where it is not then so subject;
(ve) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under in the Securities Act, of the occurrence event of any event as a result underwritten public offering, enter into and perform its obligations under an underwriting agreement with the managing underwriter of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingoffering;
(vif) in the case of an underwritten offering, furnish:
(i) enter into to each Investor of Registrable Securities included in such customary agreements (including underwriting agreements in customary form)registration statement a signed counterpart, (ii) take all addressed to such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser selling Investors and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue underwriters, if any, of an opinion or opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than dated the effective date of such Registration Statement;registration statement (or, if such registration includes an underwritten public offering, an opinion or opinions dated the date of the closing under the underwriting agreement), reasonably satisfactory in form and substance to a majority of such selling Investors and underwriters, if any, covering such matters as are customarily covered in opinions of issuer’s counsel; and
(xiii) if requested, cause to be delivered, immediately prior to the pricing underwriters, if any, a signed counterpart (with copies to the holders of the Registrable Securities included in such registration statement) of a “comfort” letter (or, in the case of any such person which does not satisfy the conditions for receipt of a “comfort” letter specified in Statement on Auditing Standards No. 72, as amended, an “agreed upon procedures” letter), dated the effective date of such registration statement and a “bring-down” letter of like kind dated the date of the closing under the underwriting agreement, signed by the independent public accountants who have certified the Company’s financial statements included in such registration statement, covering substantially the same matters with respect to such registration statement (and the prospectus included therein and any Free Writing Prospectus related to such registration statement) and with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants’ letters delivered to the underwriters in underwritten offering, immediately prior to effectiveness public offerings of each Registration Statement securities (andwith, in the case of an underwritten offering“agreed upon procedures” letter, at such modifications or deletions as may be required under Statement on Auditing Standards No. 35, as amended);
(g) notify the time of closing of the sale Investors of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser Securities included in such registration statement and each underwriter, if any, stating that promptly and confirm such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise advice in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) writing promptly notify Purchaser and the underwriter or underwriters, if anythereafter:
(1i) when the Registration Statementregistration statement, any pre-effective amendment, the Prospectus prospectus or any Free Writing Prospectus supplement related thereto or post-effective amendment to the Registration Statement registration statement has been filed filed, and, with respect to the Registration Statement registration statement or any post-effective amendmentamendment thereto, when the same has become effective;
(2ii) of any written request by the SEC for amendments or supplements to the Registration Statement registration statement or the prospectus or any Free Writing Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerfor additional information;
(3iii) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; andregistration statement or the initiation of any proceedings by any person for that purpose;
(4iv) if at any time the representations and warranties of the Company made as contemplated by Section 2.2 cease to be true and correct; or
(v) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Securities for sale under the applicable securities or blue sky laws of any jurisdiction.jurisdiction or the initiation or threat of any proceeding for such purpose;
(bh) The Company represents notify each Investor of Registrable Securities included in such registration statement and warrants that no Registration Statement each underwriter at any time when a prospectus relating thereto is required to be delivered under the Securities Act (including or other applicable non-U.S. securities laws and regulations, as the case may be) upon the Company’s discovery that, or upon the happening of any amendments 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 supplements thereto omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and Prospectuses contained therein) at the request of each such Investor or underwriter prepare and furnish to such Investor and underwriter a reasonable number of copies of a supplement to or amendment of such prospectus or a Free Writing Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall contain any not include an untrue statement of a material fact or omit to state a of material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in light of the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).circumstances then existing;
(ci) The Company shall otherwise use its reasonable efforts to comply with all applicable rules and regulations of the SEC, and make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following the resolution or clearance of all SEC comments orreasonably practicable, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue earnings statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend covering the period of time during at least 12 months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the Company is required provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, and will furnish to maintain each selling Investor at least five business days prior to the applicable Registration Statements effective filing thereof a copy of any such earnings statement and shall not make available to security holders any such earnings statement to which Investors of at least a majority of the Registrable Securities included in such registration statement shall have reasonably objected on the grounds that such earnings statement does not comply in all material respects with the requirements of the Securities Act;
(j) make available, upon reasonable advance notice and at reasonable times, for inspection by a representative appointed by the Investors of a majority of the Registrable Securities, any managing underwriter(s) participating in any disposition pursuant to this Agreement the registration statement and any attorney or accountant retained by the number of days during the period from such selling Investors or managing underwriter(s), all financial and including the date of the giving of such Suspension Notice to other records, pertinent corporate documents and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) The Company shall not permit any officer, director, underwriter, broker or any other person acting on behalf properties of the Company and cause the Company’s officers, directors and employees to use supply all information reasonably requested by any free writing prospectus (as defined in Rule 405 under the Securities Act) such person in connection with such registration as shall be necessary to permit a reasonable investigation within the meaning of Section 11 of the Securities Act (subject to the entry by each party referred to in this clause (j) into customary confidentiality agreements in a form reasonably acceptable to the Company); and
(k) use its reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement covering Registrable Common Stock, without at the prior written consent of Purchaser and any underwriterearliest possible moment.
Appears in 1 contract
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall use its reasonable best efforts is required to effect the registration and of any Registrable Securities under the sale of such Registrable Common Stock Securities Act as provided in accordance with Purchaser’s intended methods of disposition thereofSections 2.1, 2.2, and pursuant thereto 2.3, the Company shall will, unless provided otherwise in this Agreement, as expeditiously as reasonably practicablepossible:
(i) prepare and (within 90 days after the end of the period within which requests for registration may be given to the Company or in any event as soon thereafter as practicable) file with the SEC a Registration Statement with respect Commission the requisite registration statement to effect such Registrable Common Stock registration and thereafter use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereaftereffective; and before filing a Registration Statement or Prospectus or provided, however, that the Company may discontinue any amendments or supplements thereto registration of its securities that are not Registrable Securities (including any prospectus supplement for a shelf takedownand, under the circumstances specified in Section 2.2(a), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if anyits securities that are Registrable Securities) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) at any time prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement the effective date of the registration statement relating thereto;
(ii) prepare and file with the SEC 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 a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during registration statement until the earlier of (a) such period time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement andregistration statement and (b) 180 days after the effective date of such registration statement, except with respect to any registration statement filed pursuant to Rule 415 under the Securities Act, in which case the case Company shall use its best efforts to keep the registration statement effective and updated, from the date such registration statement is declared effective until such time as all of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may Registrable Securities cease to be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownRegistrable Securities;
(iii) furnish to Purchaser each seller of Registrable Securities covered by such registration statement, such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus contained in such Registration Statement, each amendment and supplement thereto, each Prospectus registration statement (including each preliminary Prospectus prospectus and Prospectus supplementany summary prospectus) and such any other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no such obligation to furnish copies of a final prospectus if the conditions of filed under Rule 172(c) 424 under the Securities Act are satisfied by and each such amendment and supplement thereto (in each case including all exhibits), in conformity with the Companyrequirements of the Securities Act, and such other documents, as such seller may reasonably request;
(iv) use its reasonable best efforts (A) to register or qualify all Registrable Securities and other securities covered by such Registrable Common Stock registration statement under such other securities or blue sky laws of such jurisdictions States of the United States of America where an exemption is not available and as the sellers of Registrable Securities covered by such registration statement shall reasonably request, (domestic B) to keep such registration or foreignqualification in effect for so long as such registration statement remains in effect and (C) as Purchaser and to take any underwriter(s) reasonably requests and do any and all other acts and things action that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such sellers to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities to be sold by such sellers, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph subdivision (iv), (2) subject itself be obligated to taxation in any such jurisdiction be so qualified or (3) to consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required use its best efforts to cause all Registrable Securities covered by such registration statement to be delivered under registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the Securities Act, opinion of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary counsel to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement and counsel to the seller or amendment sellers of Registrable Securities to enable the seller or sellers thereof to consummate the disposition of such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingRegistrable Securities;
(vi) in the case of an underwritten or “best efforts” offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than furnish at the effective date of such Registration Statement;registration statement to each seller of Registrable Securities, and each such seller’s underwriters, if any, a signed counterpart of:
(xiA) an opinion of counsel for the Company, dated the effective date of such registration statement and, if requestedapplicable, cause the date of the closing under the underwriting agreement, and
(B) a “comfort” letter signed by the independent public accountants who have certified the Company’s financial statements included or incorporated by reference in such registration statement, covering substantially the same matters with respect to be delivered, immediately prior to such registration statement (and the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (prospectus included therein) and, in the case of an underwritten offeringthe accountants’ comfort letter, at with respect to events subsequent to the time date of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters statements, as are customarily covered by in opinions of issuer’s counsel and in accountants’ comfort letters delivered to the underwriters in underwritten public offerings of securities and, in the case of the independent registered public accountants delivered accountants’ comfort letter, such other financial matters, and, in connection with primary underwritten public offeringsthe case of the legal opinion, such other legal matters, in either case, as the underwriters may reasonably request;
(xiivii) make generally available cause representatives of the Company to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as participate in any “road show” or “road shows” reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements requested by any underwriter of an earning statement under Section 11(a) underwritten or “best efforts” offering of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effectiveRegistrable Securities;
(2viii) notify each seller of Registrable Securities covered by such registration statement at any time during the time period set forth in Section 2.4(a)(ii), upon discovery that, or upon the happening of any written event (including those events referred to in Section 2.7) as a result of which, the prospectus included in such registration statement, as then in effect, may not be relied upon, and at the request by the SEC for amendments of any such seller promptly prepare and furnish to it a reasonable number of copies of a supplement to or supplements an amendment of such prospectus as may be necessary so that, as thereafter delivered to the Registration Statement or any Prospectus or purchasers of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) such securities, such prospectus shall contain any not include an untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in light of the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).circumstances under which they were made;
(cix) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and, if required, make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following the resolution or clearance of all SEC comments orreasonably practicable, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue earnings statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend covering the period of time during at least 12 months, but not more than 18 months, beginning with the first full calendar month after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(x) provide and cause to be maintained a transfer agent and registrar (which, in each case, may be the Company) for all Registrable Securities covered by such registration statement from and after a date not later than the effective date of such registration; and
(xi) use its best efforts to list, if the Company is required to maintain meets the applicable Registration Statements effective pursuant to this Agreement listing requirements, all Registrable Securities covered by such registration statement on the number of days during the period from and including the date National Market System of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any eventNasdaq Stock Market, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriternational securities exchange or automated quotation system.
Appears in 1 contract
Procedures. If, and to the extent, Oaktree Series B Demand Shares are to be registered, the term "Registrable Shares" shall be deemed to include such Oaktree Series B Demand Shares and the term "Investors" shall be deemed to include the Oaktree Investors, but only to the extent such terms are used in Article V or this Schedule 5.6. Upon receipt of a Demand Registration Request or a Piggyback Request from the Investors pursuant to Article V, the Parent shall:
(a) In promptly prepare and file a preliminary prospectus, prospectus supplement or registration statement, as applicable, under and in compliance with the Securities Laws in each jurisdiction in which the Registration is to be effected and such other related documents as may be necessary to be filed in connection with the such preliminary prospectus, prospectus supplement or registration statement and sale of Registrable Common Stock pursuant to this Agreementshall, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) with respect to a Registration in Canada, promptly prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock prospectus and use its commercially reasonable best efforts to cause a receipt to be issued for such Registration Statement to become effective prospectus as soon as practicable thereafter; and shall take all other steps and proceedings that may be required in order to qualify the securities being sold pursuant to such Registration, and/or (ii) with respect to a Registration in the United States, use its commercially reasonable efforts to promptly cause such registration statement to be declared or become effective in order to register the offer and sale of the securities being offered pursuant such Registration (provided that, before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed referred to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthis Section, the exhibits incorporated by reference, and Purchaser (and Parent shall furnish to the underwriter(scounsel to the Investors copies thereof), if any) which documents shall have be subject to the opportunity to review and comment thereon, and the Company will make of such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(scounsel), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iib) promptly prepare and file with the SEC such amendments and supplements to such Registration Statement preliminary prospectus and the Prospectus used in connection therewith prospectus or registration statement, as applicable, as may be necessary to keep such Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the applicable Securities Act Laws with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case distribution of the Shelf Registration StatementRegistrable Shares, prepare and to take such steps as are reasonably necessary to maintain the qualification of such prospectus supplements containing or the effectiveness of such disclosures as may registration statement until the time at which the distribution of the Registrable Shares sought to be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownsold is completed;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(ivc) use its commercially reasonable best efforts to register or qualify such Registrable Common Stock Shares under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) seller reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, provided that the Company will Parent shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv)paragraph, (2ii) subject itself to taxation in any such jurisdiction or jurisdiction, (3iii) consent to general service of process in any such jurisdictionjurisdiction or (iv) register or qualify any Registrable Shares in any jurisdiction outside of Canada and the United States);
(vd) notify Purchaser cause to be furnished to the Investors, the underwriter or underwriters of any offering such number of copies of such preliminary prospectus, prospectus, registration statement and any underwriter(s)amendments and supplements thereto and such other customary opinions, at any time when a Prospectus relating thereto is required to be delivered under certificates, comfort letters and closing documents as the Securities Act, underwriters or the Investors may reasonably request;
(e) immediately notify the Investors and underwriters of the occurrence of any event as a result of which any Prospectus contains the preliminary prospectus, prospectus supplement, prospectus or registration statement, as then in effect, might include an untrue statement of a material fact or omits might omit any material fact that is required to be stated or that is necessary to make the statements any statement therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) misleading in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management light of the Company to be available to participate in, and to cooperate with circumstances in which it was made (other than facts or statements provided by the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasersInvestors or underwriters);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiiif) promptly notify Purchaser and the underwriter Investors (i) of receipt of any comment letters received from the SEC or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, Canadian Securities Commission with respect to the Registration Statement a registration statement, prospectus or any post-effective amendment, when the same has become effective;
documents incorporated therein and (2ii) of any written other request by the SEC SEC, the Canadian Securities Commission or any state securities authority for amendments or supplements to the Registration Statement a registration statement or any Prospectus prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding for additional information with respect to the issuance by registration statement and prospectus;
(g) comply with Securities Laws and the SEC rules, regulations and policies of the TSX, NASDAQ and of any stop order suspending other stock exchange or over the effectiveness of counter market on which the Registration StatementCommon Shares are then listed and/or traded;
(h) use its commercially reasonable efforts to provide such information as is required for any filings required to be made with the Financial Industry Regulatory Authority; and
(4i) in respect of any Demand Registration, enter into an underwriting agreement with the receipt underwriters for the offering containing such representations and warranties by the Company of any notification Parent and such other terms and provisions as are customarily contained in underwriting agreements with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdictionsecondary distributions.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with Whenever the registration and sale holders of Registrable Common Stock Securities have requested that any Registrable Securities be registered pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the intended methods method of disposition thereof, ; and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(ia) prepare and file with the SEC Securities and Exchange Commission (the "Commission") a Registration Statement with respect to registration statement on the appropriate form under the Securities Act, which form shall be available for the sale of such Registrable Common Stock Securities in accordance with the intended method or methods of distribution thereof, and use its commercially reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereafter; and (provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, the Company shall furnish to Purchaser and the underwriter or underwriters, if any, counsel selected by the holders of a majority of the Registrable Securities covered by such registration statement copies of all such documents proposed to be filed, including which documents incorporated by reference in shall be subject to the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make of such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(scounsel), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(iib) notify each holder of Registrable Securities of the effectiveness of each registration statement filed hereunder and prepare and file with the SEC Commission, such amendments, post-effective amendments and supplements to such Registration Statement registration statement and the Prospectus prospectus used in connection therewith as may be necessary or appropriate to keep such Registration Statement registration statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary there are Registrable Securities outstanding, cause such prospectus as so supplemented to complete be filed as required under the distribution of the securities covered by such Registration Statement Securities Act, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during such period in accordance with the intended methods of disposition by Purchaser the sellers thereof set forth in such Registration Statement and, in registration statement or supplement to the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably prospectus;
(c) if requested by Purchaser the managing underwriter or any underwriter(s) underwriters or a holder of Registrable Securities being sold in connection with each shelf takedownan underwritten offering, immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority in interest of the Registrable Securities being sold reasonably agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the principal amount of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(iiid) furnish to Purchaser each seller of Registrable Securities such number of copies of such Registration Statementregistration statement, each amendment and supplement thereto, each Prospectus the prospectus included in such registration statement (including each preliminary Prospectus and Prospectus supplementprospectus) and such other documents as Purchaser and any underwriter(s) such seller may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no Securities owned by such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Companyseller;
(ive) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic where such registration or foreign) qualification is required as Purchaser and any underwriter(s) seller reasonably requests and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock Securities owned by such seller (provided, provided that the Company will shall not be required to (1i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2ii) subject itself to taxation in any such jurisdiction or (3iii) consent to general service of process in any such jurisdiction);
(vf) notify Purchaser and any underwriter(s)each seller of such Registrable Securities, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of upon discovery that, or upon the occurrence happening of any event as a result of which any Prospectus the prospectus included in such registration statement as then in effect, contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleadingmisleading in the light of the circumstances under which they were made, and, at the request of Purchaser or any underwriter(s)such seller, the Company shall promptly prepare a supplement or amendment to such Prospectus prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus prospectus shall not contain an untrue statement of a material fact required to be stated therein or omit to state any material fact necessary to make the statements therein not misleading;
(vig) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed or traded, and, if not so listed or traded, to be listed on the NASD automated quotation system and, if listed on the NASD automated quotation system, use commercially reasonable efforts to secure NASDAQ authorization for such Registrable Securities and, without limiting the generality of the foregoing, to arrange for at least two market makers to register as such with respect to such Registrable Securities with the NASD;
(h) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the case selling holders or the managing underwriters, if any, may request at least ten Business Days prior to any sale of an underwritten offering, Registrable Securities; provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(i) enter into such customary agreements (including including, if there is an underwriter, underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (form including, without limitation, causing senior management and other Company personnel the requirement to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its obtain an opinion of counsel to issue opinions of counsel in form, substance the Company and scope as are customary in primary underwritten offerings, addressed and delivered a "comfort letter" from the independent public accountants to the underwriter(s) Company in the usual and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasersform for such an underwritten offering);
(viiij) make available for inspection by Purchaserany seller of Registrable Securities, any underwriter participating in any disposition pursuant to a Registration Statement, such registration statement and any attorney, accountant or other agent retained by Purchaser any such seller or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the CompanyCompany that is customary, and cause the Company’s 's officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserany such seller, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statementregistration statement;
(ixk) use its reasonable best efforts cooperate, and cause the Company's officers, directors, employees and independent accountants to cause all such Registrable Common Stock to be listed on NASDAQcooperate, or any exchange on which securities of with the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale selling holders of Registrable Common Stock pursuant thereto), letters from Securities and the Company’s independent registered public accountants addressed to Purchaser and each underwritermanaging underwriters, if any, stating that such accountants are independent public accountants within in the meaning sale of the Registrable Securities Act and the take any actions necessary to promote, facilitate or effectuate such sale;
(l) otherwise use its best efforts to comply with all applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) Commission and make generally available to Purchaser and its Affiliates a consolidated earnings security holders, as soon as reasonably practicable, an earning statement (which need not be audited) for covering the 12 months period of at least twelve months, beginning with the first fiscal quarter beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such periodregistration statement, which earnings earning statement shall satisfy the requirements provisions of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2m) of any written request by in the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) event of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the Registration Statementuse of any related prospectus or suspending the qualification of any common stock included in such registration statement for sale in any jurisdiction, the Company shall use its best efforts promptly to obtain the withdrawal of such order; and
(4n) of the receipt by the Company of any notification with respect otherwise use its best effects to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or take all other steps necessary to make effect the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition registration of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to reviewSecurities.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (Provident American Corp)
Procedures. (a) In connection with If and whenever PacifiCare is required by the provisions of this Agreement to use all reasonable efforts to effect or cause the registration and of any Released Shares or Class B Shares (including the Remaining Released Shares) under the Securities Act or the sale of Registrable Common Stock pursuant to any Released Shares or Class B Shares registered on the Shelf Registration Statement as provided in this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofPacifiCare shall, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Securities and Exchange Commission the Shelf Registration Statement on Form S-3 (or any successor form thereto) with respect to resale on a continuous basis of such Registrable Common Stock Released Shares or Class B Shares (including or incorporating by reference such audited financial statements as may be required by the Securities Act or the rules and regulations promulgated thereunder in order to maintain its effectiveness) and use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereafter; and remain effective, provided that before filing a Registration Statement or Prospectus such registration statement or any amendments amendment or supplements thereto (including any prospectus supplement for a shelf takedown)thereto, PacifiCare will furnish to Purchaser and the underwriter or underwriters, if any, counsel selected by UniHealth copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to filed for review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretocomment;
(ii) prepare and file with the SEC Securities and Exchange 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 effective for a period maintain the effectiveness of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with registration statement until (i) if no Underwritten Offering is requested under Section 2.2(a), on February 14, 2002, and (ii) if UniHealth elects an Underwritten Offering, until the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case earlier to occur of the Shelf Registration Statement, prepare completion of the offering pursuant to such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(sand the expiration of ninety (90) in connection with each shelf takedowndays after the final prospectus for the Underwritten Offering becomes effective;
(iii) furnish to Purchaser UniHealth and each underwriter, if any, such number of copies of such Registration Statement, registration statement and of each such amendment and supplement theretothereto (in each case including all exhibits), each Prospectus such number of copies of the prospectus and supplements thereto included in such registration statement (including each preliminary Prospectus prospectus and Prospectus supplement) any summary prospectus), in conformity with the requirements of the Securities Act, and such other documents documents, as Purchaser and UniHealth or any underwriter(s) underwriter, if any, may reasonably request in order to facilitate the public sale or other disposition of the Registrable Common Stock, 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 CompanyReleased Shares or Class B Shares;
(iv) use its all reasonable best efforts to register or qualify all UniHealth Shares and Class B Shares covered by such Registrable Common Stock registration statement under such other state securities laws or blue sky laws of such United States jurisdictions (domestic as UniHealth or foreign) any underwriter, if any, shall reasonably request, to keep such registrations or qualifications in effect for so long as Purchaser the registration statement filed under the Securities Act remains in effect and any underwriter(s) reasonably requests and to do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser UniHealth and any underwriter(s) such underwriter, if any, to consummate the disposition in such jurisdictions of the Registrable Common Stock (such Released Shares or Class B Shares, provided, however, that the Company will PacifiCare shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would not otherwise be required to qualify but for the requirements of this subparagraph clause (iv)) be obligated to be qualified, (2) to subject itself to taxation in any such jurisdiction or (3) to consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s)UniHealth, at any time when a Prospectus prospectus relating thereto to the UniHealth Shares and Class B Shares is required to be delivered under the Securities Act, of PacifiCare's becoming aware that the occurrence of any event prospectus included in such registration statement, as a result of which any Prospectus contains then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) misleading in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management light of the Company to be available to participate incircumstances then existing, and promptly prepare and furnish to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser UniHealth and each underwriter, if any, stating that such accountants are independent public accountants within the meaning a reasonable number of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date copies of a Registration Statement prospectus supplemented or amended so that, as soon as reasonably practicable after thereafter delivered to the end purchasers of such periodReleased Shares or Class B Shares, which earnings statement such prospectus shall satisfy the requirements of not include an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in the Company makes no representation or warranty with respect to information relating to Purchaser furnished to light of the Company by or on behalf of Purchaser specifically for use therein).circumstances then existing;
(cvi) The Company shall make available to Purchaser (i) advise UniHealth, promptly after the same is prepared and publicly distributedit receives notice thereof, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to time when such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement registration statement or any amendment thereto has become effective or any related prospectus or any supplement to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement prospectus or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determinesprospectus has been filed, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening issuance by the Securities and Exchange Commission of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.stop order or
Appears in 1 contract
Sources: Registration Rights Agreement (Pacificare Health Systems Inc /De/)
Procedures. (a) In connection with the registration If and sale of Registrable Common Stock pursuant to this Agreement, whenever the Company shall is required to use its reasonable best efforts to effect the registration and of any Registrable Securities under the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereofSecurities Act, and pursuant thereto the Company shall as expeditiously as reasonably practicablepromptly:
(i) prepare and file with the SEC Securities and Exchange Commission a Registration Statement registration statement with respect to such Registrable Common Stock securities, make all required filings with the NASD and use its reasonable best efforts to cause such Registration Statement registration statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoeffective;
(ii) prepare and file with the SEC Securities and Exchange 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 a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement until such period time as all of such securities have been disposed of in accordance with the intended methods of disposition by Purchaser the seller or sellers thereof set forth in such Registration Statement andregistration statement, but in the case no event for a period of the Shelf Registration Statement, prepare more than six months after such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedownregistration statement becomes effective;
(iii) furnish to Purchaser counsel (if any) elected by holders of a majority (by number of shares) of the Registrable Securities covered by such registration statement copies of all documents proposed to be filed with the Securities and Exchange Commission in connection with such registration, which documents shall be subject to the review of such counsel;
(iv) furnish to each seller of such securities such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case including all exhibits, except that the Company shall not be obligated to furnish any seller of securities with more than two copies of such exhibits), such number of copies of the prospectus included in such Registration Statement, each amendment and supplement thereto, each Prospectus registration statement (including each such preliminary Prospectus prospectus and Prospectus supplement) any summary prospectus), in conformity with the requirements of the Securities Act, and such other documents documents, as Purchaser and any underwriter(s) such seller may reasonably request in order to facilitate the disposition of the Registrable Common Stock, provided, however, that the Company shall have no securities owned by such obligation to furnish copies of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied by the Companyseller;
(ivv) use its reasonable best efforts to register or qualify such Registrable Common Stock securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests each seller shall request, and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) such seller to consummate the disposition in such jurisdictions of the Registrable Common Stock (providedsecurities owned by such seller, except that the Company will shall not for any such purpose be required to (1) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it would is not otherwise be required so qualified, or to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction other than process served in connection with alleged violations by the Company of the securities laws of such jurisdiction);
(vvi) furnish to each seller a signed counterpart, addressed to the sellers, of
(A) an opinion of counsel for the Company, dated the effective date of the egistration statement, and
(B) subject to the accountants obtaining the necessary representations as specified in Statement on Auditing Standards No. 72, a "comfort" letter signed by the independent public accountants who have certified the Company's financial statements included in the registration statement, covering substantially the same matters with respect to the registration statement (and the prospectus included therein) and, in the case of such accountants' letter, with respect to changes subsequent to the date of such financial statements, as are customarily covered in opinions of issuer's counsel and in accountants' letters delivered to the underwriters in underwritten public offerings of securities;
(vii) notify Purchaser and each seller of any underwriter(s)securities covered by such registration statement, at any time when a Prospectus prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence happening of any event as a result of which any Prospectus contains the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleadingmisleading in light of the circumstances then existing, and, and at the request of Purchaser or any underwriter(s), the Company shall such seller prepare and furnish to such seller a reasonable number of copies of a supplement to or an amendment to of such Prospectus prospectus as may be necessary so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such securities, such Prospectus prospectus shall not contain include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that in light of the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).circumstances then existing;
(cviii) The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the Securities and Exchange Commission, and make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryits security holders, as soon as practicable following reasonably practicable, an earnings statement covering the resolution or clearance period of all SEC comments orat least twelve months, but not more than eighteen months, beginning with the first month after the effective date of the registration statement, which earnings statement shall satisfy the provisions of section 11(a) of the Securities Act; and
(ix) use its best efforts to list such securities on any stock market on which the Common Stock is then listed, if applicablesuch securities are not already so listed and if such listing is then permitted under the rules of such exchange, following notification by and to provide a transfer agent and registrar for such Registrable Securities not later than the SEC that any effective date of such Registration Statement or any amendment thereto will not be subject to review.
(d) registration statement. The Company may require Purchaser each seller of any securities as to which any registration is being effected to furnish to the Company any other such information regarding Purchaser such seller and the distribution of such securities as the Company may from time to time reasonably determines, based on request in writing and as shall be required by law in connection therewith. Each such holder agrees to furnish promptly to the advice of counsel, is Company all information required to be included disclosed in order to make the information previously furnished to the Company by such holder not materially misleading. By acquisition of Registrable Securities, each holder of such Registrable Securities shall be deemed to have agreed that upon receipt of any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed includedkind described in Section 22(b)(vii) in hereof, such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith holder shall promptly discontinue such holder's disposition of Registrable Common Stock Securities pursuant to the registration statement covering such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) Registrable Securities until Purchaser is advised in writing by the Company that the use such holder's receipt of the Prospectus may be resumed and is furnished with a copies of the supplemented or amended Prospectus as prospectus contemplated by Section 8(a22(b)(vii) hereof; provided. If so directed by the Company, however, that such postponement of sales each holder of Registrable Common Stock by Purchaser Securities shall not exceed ninety deliver to the Company (90at the Company's expense) days all copies, other than permanent file copies, then in such holder's possession of the aggregate in any 12 month periodprospectus covering such Registrable Securities current at the time of receipt of such notice. If In the event the Company shall give Purchaser any Suspension Noticesuch notice, the Company period mentioned in Section 22(b)(ii) hereof shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement be extended by the number of days during the period from and including the date of the giving of such Suspension Notice notice to and including the date Purchaser either is advised when each seller of any Registrable Securities covered by the Company that the use of the Prospectus may be resumed or receives such registration statement shall have received the copies of the supplemented or amended Prospectus prospectus contemplated by Section 8(a22(b)(vii) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month periodhereof.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Warrant Agreement (Bull Run Corp)
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock in accordance with Purchaser’s intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicable:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Table of Contents Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) and such other documents as Purchaser and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common Stock, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue Table of Contents statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, Table of Contents at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessary, as soon as practicable following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “Suspension Notice”), Purchaser will forthwith discontinue disposition of Registrable Common Stock pursuant to such Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days in the aggregate in any 12 month period. If the Company shall give Purchaser any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stock, without the prior written consent of Purchaser and any underwriter.
Appears in 1 contract
Sources: Registration Rights Agreement (North American Financial Holdings, Inc.)
Procedures. (a) In connection with the registration and sale of event that the Investor requests that any Registrable Common Stock Securities be sold or registered pursuant to this Agreement, the Company shall use its reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Securities in accordance with Purchaser’s the Investor's intended methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as reasonably practicablepossible:
(i) prepare and file with the SEC a Registration Statement with respect to such Registrable Common Stock Securities and use its reasonable best efforts to cause such Registration Statement to become effective as soon as practicable thereafter; in any event not later than the time periods stated in Sections 2(a) and 3(a), if and as applicable, and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser the Investor and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference in the Prospectus and, if requested by Purchaserthe Investor, the exhibits incorporated by reference, and Purchaser the Investor (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser the Investor (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto;
(ii) prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period of not less than 90 one hundred and eighty (180) days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) monthsfive years, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Investor thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser the Investor or any underwriter(s) in connection with each shelf takedown;
(iii) furnish to Purchaser the Investor such number of copies of such Registration Statement, each amendment and supplement thereto, each the Prospectus included in such Registration Statement (including each preliminary Prospectus and Prospectus supplementProspectus) and such other documents as Purchaser the Investor and any underwriter(s) may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities, 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;
(iv) use its reasonable best efforts to register or qualify such Registrable Common Stock Securities under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser the Investor and any underwriter(s) reasonably requests and do any and all other acts and things that may be reasonably necessary or advisable to enable Purchaser the Investor and any underwriter(s) to consummate the disposition in such jurisdictions of the Registrable Common Stock Securities (provided, that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3) consent to general service of process in any such jurisdiction);
(v) notify Purchaser the Investor and any underwriter(s), at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser the Investor or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amendeddelivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser the Investor or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock Securities (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser the Investor and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaserthe Investor;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser the Investor under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaserthe Investor, any underwriter participating in any disposition pursuant to a such Registration Statement, and any attorney, accountant or other agent retained by Purchaser the Investor or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s 's officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaserthe Investor, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock Securities to be listed on NASDAQ, or any each securities exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on Nasdaq or a national securities exchange selected by the Company and agreed to by PurchaserCompany;
(x) provide a transfer agent and registrar for all such Registrable Common Stock Securities not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock Securities pursuant thereto), letters from the Company’s 's independent registered public accountants addressed to Purchaser the Investor and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates Investors a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser the Investor and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective;
(2) of any written request by the SEC for amendments or supplements to the Registration Statement or any Prospectus or of any inquiry by the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuerStatement;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock Securities for sale under the applicable securities or blue sky laws of any jurisdiction.
(b) The Company represents and warrants that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall contain any 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 (except that the Company makes no representation or warranty with respect to information relating to Purchaser the Investor furnished to the Company by or on behalf of Purchaser the Investor specifically for use therein).
(c) The Company shall make available to Purchaser the Investor (i) promptly after the same is prepared and publicly distributed, filed with the SEC, or received by the Company, one copy of each Registration Statement and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each a Prospectus, including a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser the Investor or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common StockSecurities. The Company will promptly notify Purchaser the Investor of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable practicable, in any event not later than the timeframes stated in Sections 2(a) or 3(a) as and if applicable, and shall file an acceleration request, if necessary, as soon as practicable immediately following the resolution or clearance of all SEC comments or, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto will not be subject to review.
(d) The Company may require Purchaser the Investor to furnish to the Company any other information regarding Purchaser the Investor and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser The Investor agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading (a “"Suspension Notice”"), Purchaser the Investor will forthwith discontinue disposition of Registrable Common Stock Securities pursuant to such Registration Statement for a reasonable length of time not to exceed 10 ten (10) days (45 thirty (30) days in the case of an event described in Section 3(d)) until Purchaser the Investor is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a9(a) hereof; provided, however, that such postponement of sales of Registrable Common Stock Securities by Purchaser the Investor shall not exceed ninety forty-five (9045) days in the aggregate in any 12 month period. If the Company shall give Purchaser the Investor any Suspension Notice, the Company shall extend the period of time during which the Company is required to maintain the applicable Registration Statements effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser the Investor either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a9(a) (a “"Blackout Period”"). In any event, the Company shall not be entitled to deliver more than a total of three (3) Suspension Notices or notices of any Delay Period in any twelve (12)-month 12) month period.
(f) 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 (as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common StockSecurities, without the prior written consent of Purchaser the Investor and any underwriter.
Appears in 1 contract
Procedures. (a) In connection with the registration and sale of Registrable Common Stock pursuant to this Agreement, the Company shall Parent will use its best reasonable best efforts to effect the registration and the sale of such Registrable Common Stock Shares in accordance with Purchaser’s the intended methods method of disposition thereof, and pursuant thereto the Company shall Parent will as expeditiously as reasonably practicablepossible:
(i) 2.1 prepare and file with the SEC a the Shelf Registration Statement with respect to such Registrable Common Stock Shares and use its reasonable best efforts to cause such the Shelf Registration Statement to become effective as soon as practicable thereafter; and before filing a Registration Statement or Prospectus or any amendments or supplements thereto (including any prospectus supplement for a shelf takedown), furnish to Purchaser and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, including documents incorporated by reference remain effective in the Prospectus and, if requested by Purchaser, the exhibits incorporated by reference, and Purchaser (and the underwriter(s), if any) shall have the opportunity to review and comment thereon, and the Company will make such changes and additions thereto as reasonably requested by Purchaser (and the underwriter(s), if any) prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement theretoaccordance with Section 1;
(ii) 2.2 prepare and file with the SEC such amendments amendments, post-effective amendments, and supplements to such the Shelf Registration Statement and the Prospectus prospectus used in connection therewith as may be necessary to keep such the Shelf Registration Statement effective for a period of not less than 90 days, in the case of a Demand Registration Statement or an aggregate of eighteen (18) months, in the case of a Shelf Registration Statement (plus, in each case, the duration of any Delay Effectiveness Period and any Blackout Period), or such shorter period as is necessary to complete the distribution of the securities covered by such Registration Statement and comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Shares covered by such the Shelf Registration Statement during such period in accordance with the intended methods of disposition by Purchaser the Major Stockholders thereof set forth in such Registration Statement and, in the case of the Shelf Registration Statement, prepare such prospectus supplements containing such disclosures as may be reasonably requested by Purchaser or any underwriter(s) in connection with each shelf takedown;
(iii) 2.3 furnish to Purchaser each Major Stockholder selling Registrable Shares and the underwriters of the Registrable Shares being registered such number of copies of such the Shelf Registration Statement, each amendment and supplement thereto, each Prospectus (including each preliminary Prospectus and Prospectus supplement) the prospectus included in the Shelf Registration Statement, any documents incorporated by reference therein and such other documents as Purchaser and any underwriter(s) such Major Stockholder or underwriters may reasonably request in order to facilitate the disposition of the Registrable Common StockShares owned by such Major Stockholder or the sale of such securities by such underwriters (it being understood that, provided, however, that subject to Section 3 and the Company shall have no such obligation to furnish copies requirements of a final prospectus if the conditions of Rule 172(c) under the Securities Act are satisfied and applicable state securities laws, Parent consents to the use of the prospectus and any amendment or supplement thereto by each Major Stockholder and the underwriters in connection with the offering and sale of the Registrable Shares covered by the CompanyShelf Registration Statement of which such prospectus, amendment or supplement is a part);
(iv) 2.4 use its reasonable best efforts to register or qualify such Registrable Common Stock Shares under such other securities or blue sky laws of such jurisdictions (domestic or foreign) as Purchaser and any underwriter(s) the managing underwriter reasonably requests (or, in the event the Shelf Registration Statement does not relate to an underwritten offering, as the Major Stockholders may reasonably request); use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period; and do any and all other acts and things that which may be reasonably necessary or advisable to enable Purchaser and any underwriter(s) the Major Stockholders to consummate the disposition of the Registrable Shares owned by the Major Stockholders in such jurisdictions of the Registrable Common Stock (provided, however, that the Company Parent will not be required to (1A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph (iv), (2) subject itself to taxation in any such jurisdiction or (3B) consent to general service of process in any such jurisdiction);
2.5 promptly notify each Major Stockholder selling its Registrable Shares and each underwriter and (vif requested by any such Person) notify Purchaser and any underwriter(s), at any time confirm such notice in writing (A) when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event as a result of which any Prospectus contains an untrue statement of a material fact or omits any material fact necessary to make the statements therein not misleading, and, at the request of Purchaser prospectus or any underwriter(s), the Company shall prepare a supplement or amendment to such Prospectus so that, as thereafter supplemented and/or amended, such Prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(vi) in the case of an underwritten offering, (i) enter into such customary agreements (including underwriting agreements in customary form), (ii) take all such other actions as Purchaser or the underwriter(s) reasonably request in order to expedite or facilitate the disposition of such Registrable Common Stock (including, without limitation, causing senior management and other Company personnel to cooperate with Purchaser and the underwriter(s) in connection with performing due diligence) and (iii) cause its counsel to issue opinions of counsel in form, substance and scope as are customary in primary underwritten offerings, addressed and delivered to the underwriter(s) and Purchaser;
(vii) in connection with each Demand Registration pursuant to Section 3 and each Fully Marketed Underwritten Offering requested by Purchaser under Section 2, cause there to occur Full Cooperation and, in all other cases, cause members of senior management of the Company to be available to participate in, and to cooperate with the underwriter(s) in connection with customary marketing activities (including select conference calls and one-on-one meetings with prospective purchasers);
(viii) make available for inspection by Purchaser, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney, accountant or other agent retained by Purchaser or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by Purchaser, any underwriter, any attorney, any accountant or any agent in connection with such Registration Statement;
(ix) use its reasonable best efforts to cause all such Registrable Common Stock to be listed on NASDAQ, or any exchange on which securities of the same class issued by the Company are then listed or, if no such similar securities are then listed, on a national securities exchange selected by the Company and agreed to by Purchaser;
(x) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of such Registration Statement;
(xi) if requested, cause to be delivered, immediately prior to the pricing of any underwritten offering, immediately prior to effectiveness of each Registration Statement (and, in the case of an underwritten offering, at the time of closing of the sale of Registrable Common Stock pursuant thereto), letters from the Company’s independent registered public accountants addressed to Purchaser and each underwriter, if any, stating that such accountants are independent public accountants within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC thereunder, and otherwise in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent registered public accountants delivered in connection with primary underwritten public offerings;
(xii) make generally available to Purchaser and its Affiliates a consolidated earnings statement (which need not be audited) for the 12 months beginning after the effective date of a Registration Statement as soon as reasonably practicable after the end of such period, which earnings statement shall satisfy the requirements of an earning statement under Section 11(a) of the Securities Act; and
(xiii) promptly notify Purchaser and the underwriter or underwriters, if any:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement has been filed and, with respect to the Shelf Registration Statement or any post-effective amendment, when the same has become effective;
, (2B) of the issuance by any written request by state securities or other regulatory authority of any order suspending the SEC qualification or exemption from qualification of any of the Registrable Shares under state securities or "blue sky" laws or the initiation of any proceedings for amendments or supplements to that purpose, and (C) of the happening of any event which makes any statement made in the Shelf Registration Statement or any Prospectus related prospectus untrue or which requires the making of any inquiry by changes in the SEC relating to the Registration Statement or the Company’s status as a well-known seasoned issuer;
(3) of the notification to the Company by the SEC of its initiation of any proceeding with respect to the issuance by the SEC of any stop order suspending the effectiveness of the Shelf Registration Statement; and
(4) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Common Stock for sale under the applicable securities , prospectus or blue sky laws of any jurisdiction.
(b) The Company represents and warrants documents so that no Registration Statement (including any amendments or supplements thereto and Prospectuses contained therein) shall they will not contain any untrue statement of a material fact or omit to state a any material fact required to be stated therein, therein or necessary to make the statements therein not misleading (except that the Company makes no representation or warranty with respect to information relating to Purchaser furnished to the Company by or on behalf of Purchaser specifically for use therein).
(c) The Company shall make available to Purchaser (i) misleading, and, as promptly after the same is prepared as practicable thereafter, prepare and publicly distributed, filed file with the SEC, or received by the Company, one copy of each Registration Statement SEC and any amendment thereto, each preliminary Prospectus and Prospectus and each amendment or supplement thereto, each letter written by or on behalf of the Company to the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), and each item of correspondence from the SEC or the staff of the SEC (or other governmental agency or self-regulatory body or other body having jurisdiction, including any domestic or foreign securities exchange), in each case relating to such Registration Statement or to any of the documents incorporated by reference therein, and (ii) such number of copies of each Prospectus, including furnish a preliminary Prospectus, and all amendments and supplements thereto and such other documents as Purchaser or any underwriter may reasonably request in order to facilitate the disposition of the Registrable Common Stock. The Company will promptly notify Purchaser of the effectiveness of each Registration Statement or any post-effective amendment or the filing of any supplement or amendment to such Shelf Registration Statement or of any Prospectus supplement. The Company will promptly respond to any and all comments received from the SEC, with a view towards causing each Registration Statement or any amendment thereto to be declared effective by the SEC as soon as practicable and shall file an acceleration request, if necessaryprospectus so that, as soon as practicable following thereafter deliverable to the resolution or clearance purchasers of all SEC comments orsuch Registrable Shares, if applicable, following notification by the SEC that any such Registration Statement or any amendment thereto prospectus will not be subject to review.
(d) The Company may require Purchaser to furnish to the Company contain any other information regarding Purchaser and the distribution of such securities as the Company reasonably determines, based on the advice of counsel, is required to be included in any Registration Statement.
(e) Purchaser agrees that, upon notice from the Company of the happening of any event as a result of which the Prospectus included (or deemed included) in such Registration Statement contains an untrue statement of a material fact or omits any omit a material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading misleading;
2.6 make generally available to Parent's securityholders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act no later than thirty (30) days after the end of the twelve (12) month period beginning with the first day of Parent's first fiscal quarter commencing after the effective date of the Shelf Registration Statement, which earnings statement shall cover said twelve (12) month period, and which requirement will be deemed to be satisfied if Parent timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act;
2.7 if requested by the managing underwriter or any Major Stockholder selling Registrable Shares, promptly incorporate in a “Suspension Notice”prospectus supplement or post-effective amendment such information as the managing underwriter or such Major Stockholder reasonably requests to be included therein, including, without limitation, with respect to the Registrable Shares being sold by such Major Stockholder, the purchase price being paid therefor by the underwriters and any other terms of the underwritten offering of the Registrable Shares to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
2.8 cooperate with each Major Stockholder and the managing underwriter to facilitate the timely preparation and delivery of certificates (which shall not bear any restrictive legends unless required under applicable law) representing Registrable Shares sold under the Shelf Registration Statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or such Major Stockholder may request and keep available and make available to Parent's transfer agent prior to the effectiveness of the Shelf Registration Statement a supply of such certificates;
2.9 promptly make available for inspection by any Major Stockholder, any underwriter participating in any disposition pursuant to the Shelf Registration Statement, and any attorney, accountant or other agent or representative retained by any such seller or underwriter (collectively, the "Inspectors"), Purchaser will forthwith discontinue disposition all financial and other records, pertinent corporate documents and properties of Registrable Common Stock pursuant Parent (collectively, the "Records"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause Parent's officers, directors and employees to supply all information requested by any such Inspector in connection with the Shelf Registration Statement for a reasonable length of time not to exceed 10 days (45 days in the case of an event described in Section 3(d)) until Purchaser is advised in writing by the Company that the use of the Prospectus may be resumed and is furnished with a supplemented or amended Prospectus as contemplated by Section 8(a) hereofStatement; provided, however, that that, unless the disclosure of such postponement of sales of Registrable Common Stock by Purchaser shall not exceed ninety (90) days Records is necessary to avoid or correct a misstatement or omission in the aggregate in any 12 month period. If Shelf Registration Statement or the Company shall give Purchaser any Suspension Notice, the Company shall extend the period release of time during which the Company such Records is required to maintain the applicable Registration Statements effective ordered pursuant to this Agreement by the number a subpoena or other order from a court of days during the period from and including the date of the giving of such Suspension Notice to and including the date Purchaser either is advised by the Company that the use of the Prospectus may be resumed or receives the copies of the supplemented or amended Prospectus contemplated by Section 8(a) (a “Blackout Period”). In any eventcompetent jurisdiction, the Company Parent shall not be entitled required to deliver more than a total provide any information under this Subsection 2.9 if (A) Parent believes, after consultation with counsel for Parent, that to do so would cause Parent to forfeit an attorney-client privilege that was applicable to such information or (B) if either (1) Parent has requested and been granted from the SEC confidential treatment of three (3) Suspension Notices or notices of any Delay Period such information contained in any twelve filing with the SEC or documents provided supplementally or otherwise or (12)-month period.
2) Parent reasonably determines in good faith that such Records are confidential and so notifies the Inspectors in writing, unless prior to furnishing any such information with respect to (fA) The Company shall not permit any officeror (B) such Major Stockholder requesting such information agrees to enter into a confidentiality agreement in customary form and subject to customary exceptions; and provided, directorfurther, underwriterthat each Major Stockholder agrees that it will, broker or any other person acting on behalf upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to Parent and allow Parent, at its expense, to undertake appropriate action and to prevent disclosure of the Company Records deemed confidential;
2.10 furnish to use any free writing prospectus each Major Stockholder and underwriter a signed counterpart of (A) an opinion or opinions of counsel to Parent and (B) a comfort letter or comfort letters from Parent's independent public accountants, each in customary form and covering such matters of the type customarily covered by opinions or comfort letters, as defined in Rule 405 under the Securities Act) in connection with any registration statement covering Registrable Common Stockcase may be, without the prior written consent of Purchaser and any underwriter.as such Major Stockholder or managing underwriter reasonably requests;
Appears in 1 contract
Sources: Merger Agreement (Tektronix Inc)