Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible: (a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object; (b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable; (c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading; (d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment; (e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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; (f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference); (g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto; (h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject; (i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters; (j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities; (k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading; (l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any; (m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company; (n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder; (o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order; (p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and (q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 4 contracts
Samples: Registration Rights Agreement (Regent Assisted Living Inc), Registration Rights Agreement (Regent Assisted Living Inc), Registration Rights Agreement (Regent Assisted Living Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts If and whenever Constar is required to effect such or cause the registration to permit the sale of such any Registrable Securities under the Securities Act as provided in accordance with the intended method or methods of distribution thereofthis Agreement, and pursuant thereto the Company will Constar will, as expeditiously as reasonably possible:
(a) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the registration statement with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDSecurities, and use its best efforts to cause such Registration Statement registration statement to become effective; provided effective and to keep Holders of Registrable Securities registered under such registration statement (“Participating Holders”) advised in writing of the initiation and progress of proceedings regarding such registration, provided, however, that before filing a Registration Statement Constar may discontinue, in accordance with Sections 3 or Prospectus 4 hereof, as the case may be, any registration of its securities which is being effected pursuant to Sections 3 or 4 hereof at any amendments or supplements time prior to the effective date of the registration statement relating thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwritersprovided, if anyfurther, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will that Constar shall not file any Registration Statement pursuant to Sections 3 or 4 or any amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority of the Registrable Securities covered by such Registration Statement any Participating Holder or the underwriters, if any, shall reasonably objectobject in light of the requirements of the Securities Act or any other applicable laws or regulations;
(bi) except in the case of a Demand Registration on a Shelf Registration Statement, prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, a period of not less than 180 days or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement registration statement have been sold; cause sold (but not before the Prospectus expiration of the 90-day period referred to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under in Section 4(3) of the Securities Act; Act and Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers Participating Holders thereof set forth in such registration statement;
(ii) in the case of a Demand Registration Statement or supplement on a Shelf Registration Statement, prepare and file with the Commission such amendments and supplements to such registration statement and the Prospectus; the Company shall not prospectus used in connection therewith as may be deemed to have used its best efforts necessary to keep such registration statement effective for a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the not less than 24 months or such shorter period which will terminate when all Registrable Securities covered thereby by such registration statement have been sold (but not being able before the expiration of the 90-day period referred to sell such Registrable in Section 4(3) of the Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith Act and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k)Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such registration statement during such period in accordance with the intended methods of disposition by the Participating Holders thereof set forth in such registration statement;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities Participating Holders and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference)) and a reasonable number of conformed copies of all such documents;
(gd) deliver furnish to the Participating Holders such number of copies of such registration statement and of each selling holder such amendment and supplement thereof (in each case including all exhibits), such number of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus prospectus included in such registration statement (including each preliminary prospectus and summary prospectus) ), in conformity with the requirements of the Securities Act, and any amendment or supplement thereto such other documents as such Persons a Participating Holder may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities covered by the Prospectus or any amendment or supplement theretosuch seller;
(he) prior use its best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale covered by such registration statement under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing a Participating Holder shall request, and do any and all other acts or and things which may be necessary or advisable to enable the Participating Holders to consummate the disposition in such jurisdictions of the Registrable Securities covered by the Registration StatementSecurities; provided provided, however, that the Company will Constar shall 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 in any such jurisdiction where it is not then so subject or subject itself to general taxation in any jurisdiction where it is not then so subject;
(if) cooperate with the selling holders of Registrable Securities Participating Holders 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(jg) use its best efforts to cause the immediately notify each seller of any Registrable Securities covered by such registration statement, at any time when the applicable Registration Statement registration statement is required to be registered with kept effective under clause (b) of this Section 4, of Constar becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or approved by such other governmental agencies omits to state a material fact required to be stated therein or authorities necessary to make the statements therein not misleading in the light of the circumstances then existing (which facts the Participating Holders shall keep confidential and not trade upon), and within ten days prepare and furnish to each Participating Holder a reasonable number of copies of an amended or supplemental prospectus as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such 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;
(lh) cause all make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(i) use its best efforts to list such Registrable Securities on any securities exchange on which the Common Stock is then listed or NASDAQ if the Common Stock is then quoted on NASDAQ, if such Registrable Securities are not already so listed or quoted and if such listing is then permitted under the rules of such exchange or NASDAQ, and provide an independent transfer agent and registrar for such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) registration statement not later than the effective date of the Registration Statement, such registration statement;
(j) provide a CUSIP number transfer agent and registrar for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanySecurities;
(nk) enter into furnish each Participating Holder a signed counterpart, addressed to such agreements seller (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any) of:
(i) an opinion of counsel for Constar, 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 formform and substance to each Participating Holder and the managing underwriter, substance and scope if any; and
(ii) a “comfort” letter, 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), signed by the independent public accountants who have certified Constar’s financial statements included in such registration statement, covering such matters with respect to such registration statement as are customarily made by issuers covered in accountants’ letters delivered to the underwriters in primary underwritten offerings of securities as may reasonably be requested by Holder and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwritersunderwriter, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;and
(ol) make available for inspection by a representative of the holders of a majority of the Registrable Securitieseach Participating Holder, by any underwriter participating in any disposition to be effected pursuant to such registrationregistration statement and by any attorney, and any attorney accountant or accountant other agent retained by any Participating Holder or any such underwriter (individually, an “Inspector” and collectively, the sellers or underwriter“Inspectors”), all pertinent financial and other records, pertinent corporate documents and properties of Constar as shall be reasonably necessary to enable them to exercise their due diligence responsibilities (collectively, the Company“Records”), and cause the Company's all of Constar’s officers, directors and employees to supply all information reasonably requested by any Participating Holder or any such representative, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationregistration statement; provided that any records, such Participating Holder agrees that non-public information or documents that are designated obtained by the Company in writing it as confidential a result of such Inspections shall be kept deemed confidential by such Persons unless disclosure and acknowledges its obligations under the Federal securities laws not to trade any securities of such records, information or documents is required by court or administrative orderConstar on the basis of material non-public information;
(pm) enter into a customary underwriting agreement if such registration is to be underwritten;
(n) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten underwriting offering, or and (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's Constar’s first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(qo) promptly prior take such other reasonable steps that are necessary or advisable to permit the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition sale of such Registrable Securities Securities. Each Participating Holder agrees that, upon receipt of any notice from the Company Constar of the happening of any event of the kind described in clause (g) of this Section 6(k) hereof5, such holder Participating Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holder's Participating Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by clause (g) of this Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus5, and, if so directed by the CompanyConstar, such holder Participating Holder will deliver to the Company Constar (at the Company's Constar’s expense) all copies, other than permanent file copies then in such holder's Participating Holder’s possession, of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of such Constar’s notice. In the event the Company Constar shall give any such notice, the time periods regarding the maintenance mentioned in clause (b) of such Registration Statement this Section 5 shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to clause (g) of this Section 6(c)(6) hereof 5 to and including the date when each seller of Registrable Securities covered by such Registration Statement Participating Holder shall have received the copies of the supplemented or amended prospectus contemplated by clause (g) of this Section 6(k) hereof or the Advice5.
Appears in 3 contracts
Samples: Registration Rights Agreement (Constar International Inc), Registration Rights Agreement (Constar Inc), Registration Rights Agreement (Crown Cork & Seal Co Inc)
Registration Procedures. In connection with If and whenever the Company's REIT is required by the provisions of this Agreement to effect the registration obligations pursuant to Section 3 hereofof any of the Registrable Shares under the Securities Act, the Company will use REIT shall, at its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleexpense:
(a) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, Shares and use best efforts to cause such that Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) use commercially reasonable efforts to cause the Registration Statement to remain effective;
(c) subject to the provision of Section 2, promptly prepare and file with the SEC such Commission any amendments and post-effective amendments supplements to the Registration Statement and the prospectus included in the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable periodperiod of time required by the Commission;
(d) promptly furnish to each Participating Holder such reasonable numbers of copies of the prospectus, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause including a preliminary prospectus, in conformity with the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under requirements of the Securities Act, and such other documents as the Participating Holders may reasonably request in order to facilitate the public sale or other disposition of the Registrable Shares owned by such Participating Holders and included in the Registration Statement; and and
(e) promptly use commercially reasonable efforts to register or qualify the Registrable Shares covered by the Registration Statement under the securities or Blue Sky laws of states within the United States as the Participating Holders shall reasonably request; provided, however, that the REIT shall not be required in connection with this subsection 3(e) to: (i) qualify as a foreign corporation in any jurisdiction where, but for the requirements of this subsection 3(e), it would not be obligated to be so qualified; (ii) execute a general consent to service of process in any jurisdiction; (iii) subject itself to taxation in any such jurisdiction; or (iv) register in any state requiring, as a condition to registration, escrow or surrender of any REIT securities held by any security holder other than the Participating Holders. If the REIT has delivered a preliminary or final prospectus to a Participating Holder and, after having done so, the prospectus is amended to comply with the provisions requirements of the Securities Act with respect Act, the REIT shall promptly notify such Participating Holder and, if requested, such Participating Holder shall immediately cease making offers of Registrable Shares and return all prospectuses to the REIT. The REIT shall promptly provide Participating Holders with revised prospectuses and, following receipt of the revised prospectuses, Participating Holders shall be free to resume making offers of the Registrable Shares. Notwithstanding any other provisions of this Agreement to the contrary, upon receipt by a Participating Holder of a written notice signed by the Chief Executive Officer, General Counsel or Chief Financial Officer of the REIT, to the effect set forth below, the REIT shall not be obligated during a reasonable period of time thereafter to effect any registrations pursuant to this Agreement, and each such Participating Holder agrees that it will immediately suspend sales of Shares under any effective Registration Statement for a reasonable period of time, in either case not to exceed 90 days, at any time during which, in the REIT's reasonable judgment, (i) there is a development involving the REIT or any of its affiliates which is material but which has not yet been publicly disclosed or (ii) sales pursuant to the Registration Statement would materially and adversely affect an underwritten public offering for the account of the REIT or any other material financing project or where a proposed or pending material merger or other material acquisition or material business combination or material disposition of all securities covered the REIT's assets, to which the REIT or any of its affiliates is, or is expected to be, a party. In the event a registration is postponed or sales by such a Participating Holder pursuant to an effective Registration Statement during the applicable period are suspended in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement this paragraph, there shall be added to the Prospectus; period during which the Company shall not be deemed to have used its best efforts REIT is obligated to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during for which the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented was postponed or amended prospectus contemplated by Section 6(k) hereof or the Advicesales were suspended.
Appears in 3 contracts
Samples: Registration Rights and Lock Up Agreement (Acadia Realty Trust), Registration Rights Agreement (Acadia Realty Trust), Registration Rights and Lock Up Agreement (Acadia Realty Trust)
Registration Procedures. In connection with Whenever the Company's registration obligations holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the applicable Registrant Company will shall use its best all reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Registrant Company will shall as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the registration statement with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best all commercially reasonable efforts to cause such Registration Statement registration statement to become effective; effective (provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto, the applicable Registrant Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, counsel selected pursuant to Section 2.3(b) copies of all such documents proposed to be filed, which documents will be subject to the reasonable prompt review and comment of such holders and underwriterscounsel), and upon filing such documents, promptly notify in writing such counsel of the receipt by the applicable Registrant Company will not file of any Registration Statement written comments by the SEC with respect to such registration statement or prospectus or any amendment or supplement thereto or any Prospectus written request by the SEC for the amending or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement supplementing thereof or the underwriters, if any, shall reasonably objectfor additional information with respect thereto;
(b) notify each holder of Registrable Securities of the effectiveness of each registration statement filed hereunder and prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for a period of not less than 90 days (one year in the applicable periodcase of a registration statement on Form S-3) or, if such registration statement relates to an underwritten offering, such longer period as, in the opinion of counsel for the underwriters, a prospectus is required by law to be delivered in connection with sales of Registrable Securities by any underwriter or dealer or such shorter period which as will terminate when all Registrable Securities the securities covered by such Registration Statement registration statement have been sold; cause disposed of in accordance with the Prospectus to be supplemented intended methods of disposition by the seller or sellers thereof as set forth in such registration statement (but in any event not before the expiration of any longer period required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ), and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement registration statement and cause the prospectus to the Prospectus; the Company shall not be deemed supplemented by any required prospectus supplement, and as so supplemented to have used its best efforts be filed pursuant to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders furnish to each seller of Registrable Securities such number of copies of such registration statement, each amendment and supplement thereto, the managing underwritersprospectus included in such registration statement (including, if anywithout limitation, promptly, each preliminary prospectus) and (if requested by any such Person) confirm other documents as such advice seller may reasonably request in writing, (1) when order to facilitate the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for sale owned by such seller;
(d) use all reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the applicable Registrant Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction in any jurisdiction where it is not so subject or (iii) consent to general service of process (i.e., service of process which is not limited solely to securities law violations) in any such jurisdiction in any jurisdiction where it is not so subject);
(e) promptly notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the initiation Securities Act, upon discovery that or threatening of any proceeding for such purpose and (6) upon the discovery of the happening of any event as a result of which makes the prospectus included in such registration statement contains an untrue statement of a material fact or omits any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order fact necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made (“Misleading Prospectus”), and, at the request of any such seller, as soon as reasonably practicable, file and furnish to all sellers a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made;
(df) make every cause all such Registrable Securities to be listed or authorized for quotation on each securities exchange or automated quotation system on which similar securities issued by the applicable Registrant Company are then listed or quoted (or, if no similar securities issued by the applicable Registrant Company are then listed or quoted, the applicable Registrant Company shall use all commercially reasonable effort efforts to obtain cause all such Registrable Securities to be listed or authorized for quotation on the withdrawal of any order suspending New York Stock Exchange or the effectiveness of the Registration Statement at the earliest possible momentNASD automated quotation system);
(eg) if requested by the managing underwriter or underwriters or provide a holder of transfer agent and registrar for all such Registrable Securities being sold not later than the effective date of such registration statement;
(h) enter into such customary agreements (including, without limitation, underwriting agreements in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment customary form) and take all such information other actions as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of reasonably request in order to expedite or facilitate the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification disposition of such Registrable Securities for offer and sale under the securities (including, without limitation, effecting a split or blue sky laws a combination of such jurisdictions as any seller stock or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementunits); provided that the Company will not be required to qualify generally to do business in no holder of Registrable Securities shall have any jurisdiction where it is not then so qualified indemnification or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subjectcontribution obligations inconsistent with Section 2.5 hereof;
(i) cooperate with the selling holders make available for inspection by any seller of Registrable Securities Securities, any underwriter participating in any disposition 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 managing underwritersapplicable Registrant Company, if anyand cause the applicable Registrant Company's officers, directors, employees and independent accountants to facilitate the timely preparation supply all information and delivery of certificates representing Registrable Securities to be sold and not bearing participate in due diligence sessions reasonably requested by any restrictive legends; and enable such Registrable Securities to be seller, underwriter, attorney, accountant or agent in connection with such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwritersregistration statement;
(j) otherwise use all reasonable efforts to comply with all applicable rules and regulations of the SEC, and make available to its best security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the applicable Registrant Company's first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 promulgated thereunder;
(k) use all reasonable efforts to prevent the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in such registration statement for sale in any jurisdiction, and, in the event of such issuance, immediately notify the holders of Registrable Securities included in such registration statement of the receipt by the applicable Registrant Company of such notification and shall use all reasonable efforts promptly to obtain the withdrawal of such order;
(l) use all reasonable efforts to cause the such Registrable Securities covered by the applicable Registration Statement 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than obtain one or more "cold comfort" letters, dated the effective date of such registration statement (and, if such registration includes an underwritten public offering, dated the Registration Statementdate of the closing under the underwriting agreement), provide a CUSIP number for all Registrable Securities and provide signed by the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Registrant Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering such matters of the type customarily covered in by "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and reasonably request;
(n) provide a legal opinion of the managing underwritersapplicable Registrant Company's outside counsel, dated the effective date of such registration statement (and, if anysuch registration includes an underwritten public offering, to evidence compliance with clause (k) above and with any customary conditions contained in dated the date of the closing under the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and agreement), with respect to the extent required thereunder;registration statement, each amendment and supplement thereto, the prospectus included therein (including, without limitation, the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature; and
(o) make available for inspection by a representative of use all reasonable efforts to cause its officers to support the holders of a majority marketing of the Registrable SecuritiesSecurities being sold (including, any underwriter without limitation, participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information "road shows" as may be reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules underwriters administering the offering and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition sale of such Registrable Securities thatSecurities) to the extent reasonably possible, upon receipt taking into account such officers' responsibility to manage the applicable Registrant Company's business. If any such registration or comparable statement refers to any holder by name or otherwise as the holder of any notice from the Company securities of the happening of any event of the kind described applicable Registrant Company and if in Section 6(k) hereofsuch holder's sole and exclusive judgment, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt is or might be deemed to be an underwriter or a controlling person of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the applicable Registrant Company, such holder will deliver shall have the right to (i) require the insertion therein of language, in form and substance satisfactory to such holder and presented to the applicable Registrant Company (at in writing, to the effect that the holding by such holder of such securities is not to be construed as a recommendation by such holder of the investment quality of the applicable Registrant Company's expensesecurities covered thereby and that such holding does not imply that such holder shall assist in meeting any future financial requirements of the applicable Registrant Company or (ii) all copies, other than permanent file copies in the event that such reference to such holder by name or otherwise is not required by the Securities Act or any similar Federal statute then in such holder's possessionforce, require the deletion of the Prospectus covering reference to such Registrable Securities current at holder (provided that with respect to this clause (ii), if requested by the time applicable Registrant Company, such holder shall furnish to the applicable Registrant Company an opinion of receipt of counsel to such notice. In the event the Company shall give any such noticeeffect, the time periods regarding the maintenance of such Registration Statement which opinion and counsel shall be extended by reasonably satisfactory to the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceapplicable Registrant Company).
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement (Nutracea), Investor Rights Agreement (Nutracea), Investor Rights Agreement (Nutracea)
Registration Procedures. In connection with the Company's registration obligations pursuant If and whenever, LWN is required to Section 3 hereof, the Company will use its best efforts to effect such or cause the registration to permit the sale of such any Registrable Securities under the Securities Act as provided in accordance with the intended method or methods of distribution thereofthis Agreement, and pursuant thereto the Company will LWN will, as expeditiously as possible:
(a) prepare and and, if the registration is pursuant to notice given under Section 5.2(a), in any event within 45 days after the giving of notice pursuant to Section 5.2(a), file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements registration statement with respect to such Registrable Securities on any appropriate form under the Securities Actfor which LWN then qualifies or which counsel for LWN shall deem appropriate, and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its best efforts to cause such Registration Statement registration statement to become and remain effective; provided provided, however, that before filing a Registration Statement or Prospectus or LWN may discontinue any amendments or supplements thereto, the Company will furnish registration of its securities which is being effected pursuant to Section 5.2 at any time prior to the holders effective date of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectregistration statement relating thereto;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, a period of 180 days or such shorter lesser period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to of time as LWN or any Holder may be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; Act to deliver a prospectus in connection with any sale of Registrable Securities, and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers Holder or Holders thereof set forth in such Registration Statement registration statement; provided, that before filing a registration statement or supplement prospectus, or any amendments or supplements thereto, LWN will furnish to the Prospectus; Holders and their counsel copies of all documents proposed to be filed, which documents will be subject to the Company shall review of such counsel and will not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period filed if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablecounsel reasonably objects;
(c) notify the selling holders furnish to each Holder of such Registrable Securities such number of copies of such registration statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the managing underwritersprospectus included in such registration statement (including each preliminary prospectus and summary prospectus and prospectus supplement, if anyas applicable), promptlyin conformity with the requirements of the Securities Act, and (if requested by any such Person) confirm other documents as such advice Holder may reasonably request in writing, (1) when order to facilitate the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for by such purpose and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingHolder;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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 use its best efforts underwritten) offering of the Registrable Securities to be sold in register or qualify 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the such registration or qualification of statement under such Registrable Securities for offer and sale under the other securities or blue sky laws of such jurisdictions as any seller or underwriter each Holder shall reasonably requests in writing request, and do any and all other acts or and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; provided such Holder, except that the Company will LWN shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where where, but for the requirements of this Section 5.3(d), it is would not then be obligated to be so qualified qualified, to subject itself to taxation in any such jurisdiction, or to take any action which would subject it consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(je) use its best efforts to cause the such Registrable Securities covered by the applicable Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller Holder or sellers Holders thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kf) upon the occurrence notify each Holder of any event contemplated such Registrable Securities covered by paragraph (c)(6) abovesuch registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in Section 5.3(b), of LWN's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and at the request of any such Holder, prepare and furnish to such Holder a supplement reasonable number of copies of an amended or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such prospectus shall not contain include an untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(pg) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally 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 earnings statements satisfying statement which shall satisfy the provisions of Section 11(a) of the Securities ActAct and the rules and regulations promulgated thereunder;
(h) use its best efforts to cause all such Registrable Securities to be listed on any securities exchange on which the Xxxxxx 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 to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; andsuch registration statement;
(qi) promptly prior to the filing enter into such customary agreements (including an underwriting agreement in customary form) and take such other actions as sellers of any document which is to be incorporated by reference into the Registration Statement a majority of shares of such Registrable Securities or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition order to expedite or facilitate the disposition of such Registrable Securities thatSecurities, upon receipt including making appropriate members of any notice from the Company senior management of the happening of any event of the kind described LWN available for customary participation in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the a "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver road show" presentation to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.potential investors;
Appears in 3 contracts
Samples: Put/Call Agreement (Loewen Group Inc), Put/Call Agreement (Rose Hills Co), Put/Call Agreement (Prime Succession Inc)
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to Section 3 hereofthe provisions of this Agreement, the Company will QES Parties shall use its best their respective commercially reasonable efforts to cause the Partnership to effect such registration to permit the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will QES Parties shall cause the Partnership as expeditiously soon as possiblereasonably practicable and as applicable to:
(a) subject to Section 2, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become be declared effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities subject thereto for a period ending on the earlier of (i) 6 months after the effective date of such Registration Statement during and (ii) the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of date on which all the Registrable Securities covered thereby not being able subject thereto have been sold pursuant to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableRegistration Statement;
(c) notify the selling holders of Registrable Securities and the managing underwriterswithin a reasonable time before filing such Registration Statement, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements thereto with the Commission, furnish to the Registration Statement or the Prospectus or for additional information, (3) of the issuance one counsel selected by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should included in such Registration Statement, Prospectus or amendments or supplements thereto copies of such documents proposed to be included therein relating filed, which documents shall be subject to the plan review, comment and approval of distribution such counsel;
(d) notify each selling holder of Registrable Securities, promptly after the Partnership receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed with respect the Commission;
(e) furnish to each selling holder of Registrable Securities such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto (in each case including all exhibits and documents incorporated by reference therein) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(f) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as any selling holder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holders; provided, that the Partnership shall not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this Section 5(f);
(g) notify each selling holder of such Registrable Securities, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, the QES Parties shall cause the Partnership to prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) make available for inspection by any selling holder of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of the Partnership, and cause the Partnership’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement;
(i) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Units are then listed;
(k) in connection with an underwritten offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms making appropriate officers of the underwritten Partnership available to participate in “road show” and other customary marketing activities (or best efforts underwritten) offering including one-on-one meetings with prospective purchasers 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 amendmentSecurities));
(fl) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its holders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than thirty (30) days after the end of the 12-month period beginning with the first day of the Partnership’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if the Partnership timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) furnish to each selling holder of Registrable Securities and each managing underwriter, without chargeif any, at least one signed copy with (i) a written legal opinion of the Registration Statement Partnership’s outside counsel, dated the closing date of the offering, in form and substance as is customarily given in opinions of registrants’ counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort” letter signed by the Partnership’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(n) without limiting Section 5(f), use its commercially reasonable efforts to cause such Registrable Securities 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 Partnership to enable the seller or sellers thereof or the underwriters, if any, holders of such Registrable Securities to consummate the disposition of such Registrable SecuritiesSecurities in accordance with their intended method of distribution thereof;
(ko) upon notify the occurrence holders of Registrable Securities promptly of any event contemplated request by paragraph the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(c)(6p) aboveadvise the holders of Registrable Securities, prepare a supplement promptly after it shall receive notice or posteffective amendment to obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the related Prospectus initiation or threatening of any document incorporated therein by reference proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or file any other required document so that, as thereafter delivered to obtain its withdrawal at the purchasers earliest possible moment if such stop order should be issued;
(q) cooperate with the holders of the Registrable SecuritiesSecurities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of Common Units and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that the Prospectus will not contain an untrue statement Partnership may satisfy its obligations hereunder without issuing physical stock certificates through the use of a material fact or omit to state any material fact necessary to make the statements therein not misleadingfacilities of The Depository Trust Company (“DTC”);
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(mr) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanyDTC; provided, that the Partnership may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of DTC;
(ns) enter into such agreements (including an underwriting agreement) and take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to the Partnership, the Partnership will take all commercially reasonable action to make any such prohibition inapplicable; and
(t) otherwise use its commercially reasonable efforts to take all other actions in connection therewith in order steps necessary to expedite or facilitate effect the disposition registration of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 3 contracts
Samples: Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement
Registration Procedures. In connection with the Company's registration obligations pursuant of the Company with respect to the Registration Statements contemplated by Section 3 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with the SEC, as soon as practicablewithin the time period set forth in Section 3 hereof, a the Registration Statement or Statements, which Registration Statements on any appropriate form under the Securities Act, which form shall (i) be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution by the selling Holders thereof and shall (ii) comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments furnish to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders each Holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment that has been filed, and, with respect delivered a Registration Notice to the Registration Statement Company or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements otherwise is entitled to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the have its Registrable Securities for sale included in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the a Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the each Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably requestin order to facilitate the public sale or other disposition of the Registrable Securities; the Company consents to the use of the Prospectus or and any amendment or supplement thereto by each of the selling holders such Holder of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hc) prior use its reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale by the time any Registration Statement is declared effective by the SEC under the all applicable state securities or blue sky laws of such jurisdictions in the United States and its territories and possessions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions Holder of the Registrable Securities covered by the Registration StatementStatement shall reasonably request in writing, keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective or during the period offers or sales are being made by a Holder that has delivered a Registration Notice to the Company, whichever is shorter; provided provided, however, that in connection therewith, the Company will shall not be required to (i) qualify generally as a foreign corporation to do business or to register as a broker or dealer in any such jurisdiction where it is would not then so qualified otherwise be required to qualify or register but for this Section 4(c), (ii) subject itself to take taxation in any action which would subject it such jurisdiction, or (iii) file a general consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(id) furnish to each Holder of Registrable Securities that has delivered a Registration Notice to the Company or is otherwise entitled to have its Registrable Securities included in a Registration Statement, without charge, at least one conformed copy of the Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(e) cooperate with the selling holders 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 legendsSecurities Act legend; and enable certificates for such Registrable Securities to be in issued for such denominations numbers of shares and registered in such names as the managing underwriters selling Holders may reasonably request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(of) make available for inspection by the Holders of Registrable Securities that have provided a representative of Registration Notice to the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Company and any attorney counsel, accountants or accountant other representatives retained by the sellers or underwriter, such Holders all financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's officers, directors and employees of the Company to supply all such records, documents or information reasonably requested by any such representativeHolders, underwritercounsel, attorney accountants or accountant representatives in connection with the Registration Statement; provided, however, that such registration; provided that any records, documents or information which the Company determines in good faith to be confidential and notifies such Holders, counsel, accountants or representatives in writing that such records, documents that or information are designated confidential shall not be disclosed by such Holders, counsel, accountants or representatives unless (i) such disclosure is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (ii) such records, documents or information become generally available to the public other than through a breach of this Agreement;
(g) use its reasonable efforts to cause all Registrable Securities to be listed on any securities exchange or automated quotation or other trading system on which similar securities issued by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information are then listed or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodstraded; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller Holder of Registrable Securities as to which any registration is being effected to furnish to the Company in writing such information regarding the proposed distribution by such Holder of such securities Registrable Securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 3 contracts
Samples: Registration Rights and Lock Up Agreement (Jensen Gladys), Registration Rights and Lock Up Agreement (Jensen Ronald L), Registration Rights and Lock Up Agreement (Jensen Gladys)
Registration Procedures. In connection with the Company's registration obligations pursuant case of each Registration effected by the Company in which Registrable Securities are to Section 3 hereofbe sold for the account of the Purchasers, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) furnish to Xxxxxxxxx Xxxxxxx LLP (counsel to the Purchasers) and any other counsel designated by a Purchaser copies of all Registration Statements or prospectuses or any amendments or supplements thereto proposed to be filed with the SEC within a reasonable period of time prior to any such filing, which documents will be subject to review by such counsel before filing solely with regard to any information contained therein which pertains to the Purchasers;
(b) use its commercially reasonable efforts to prepare and file with the SECSEC such amendments, as soon as practicableincluding post-effective amendments, a and supplements to such Registration Statement or Registration Statements on any appropriate form under and the Securities Act, which form shall prospectus used in connection therewith as may be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts necessary to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by keep such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to during the Registration Statement as may be necessary Period and to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableHolders;
(c) furnish to the Purchasers electronic copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as the Purchasers may reasonably require in order to facilitate the disposition of the Registrable Securities held by the Purchasers;
(d) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such states as may be reasonably required and do any and all other acts and things which may be reasonably necessary or advisable to enable the Purchasers to consummate the disposition of the Registrable Securities in such jurisdictions (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction where it is not then subject, or (iii) consent to general service of process in any such jurisdiction);
(e) notify the selling holders of Registrable Securities Purchasers and their designated counsel as promptly as practicable, at any time when a prospectus relating to a Registration Statement is required to be delivered under the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writingAct, (1i) when of the Prospectus or happening of any Prospectus supplement or post-effective amendment has been filed, and, with respect to event as a result of which the prospectus included in a Registration Statement contains an untrue statement of a material fact or omits to state any post-effective amendment, when fact necessary to make the same has become effectivestatements therein not materially misleading, (2ii) of any request by the SEC 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 the Prospectus prospectus or for additional information, (3iii) of the issuance by the Commission SEC 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, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction jurisdiction, or any notification of the initiation or threatening of any proceeding for such purpose purpose, and (6v) of the happening occurrence of any event which or passage of time that makes any statement made the financial statements included in the Registration StatementStatement ineligible for inclusion therein. Upon the occurrence of any of the foregoing, the Prospectus Company shall use its commercially reasonable efforts to promptly prepare a supplement or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order amendment to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the such Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters prospectus to cure or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment correct any such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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 amendmentdeficiency;
(f) effective not later than the effectiveness of the subject Registration Statement, use its commercially reasonable efforts to cause all subject Registrable Securities to be listed for trading on each national securities exchange or automated quotation system on which the Common Stock is then listed, if any;
(g) furnish to each selling holder of Registrable Securities and each managing underwriterPurchaser, without charge, at least one signed conformed copy of the Registration Statement and any post-effective each amendment thereto, including financial statements and schedules, to the extent requested by such Purchaser, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Purchaser, and all exhibits to the extent requested by such Purchaser (including those previously furnished or incorporated by reference)) promptly after the filing of such documents with the SEC;
(gh) promptly deliver to each selling holder of Registrable Securities and the underwriters, if anyPurchaser, without charge, as many copies of the Prospectus (including prospectus or prospectuses and each preliminary prospectus) and any amendment or supplement thereto as such Persons Purchaser may reasonably request; request in connection with resales by the Purchaser of Registrable Securities. The Company hereby consents to the use of the Prospectus or any such prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, Purchasers in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such prospectus and any amendment or supplement thereto;
(h, except after the giving of any notice pursuant to Section 3(e) prior to any public offering or in the event of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementan Allowed Delay; provided that the Company 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 in any such jurisdiction where it is not then so subject;and
(i) 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 comply in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an untrue statement of a all material fact or omit to state any material fact necessary to make the statements therein not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply respects with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 3 contracts
Samples: Registration Rights Agreement (Sequenom Inc), Registration Rights Agreement (Sequenom Inc), Registration Rights Agreement (Sequenom Inc)
Registration Procedures. In connection with Whenever the Company's registration obligations holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best commercially reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as possible:
(a) 5.1 prepare and file with the SEC, Commission a registration statement and such amendments and supplements as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall may be available for the sale of the necessary with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement registration statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders ;
5.2 notify each holder of Registrable Securities of the Registrable Securities covered by such Registration Statement effectiveness of each registration statement filed hereunder and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for a period of not less than 120 days (or until the applicable perioddistribution described in the registration statement has been completed) (or, or such shorter in the case of a Shelf Registration, a period ending on the earlier of (i) the date on which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause sold pursuant to the Prospectus Shelf Registration or have otherwise ceased to be supplemented by any required Prospectus supplementRegistrable Securities, and as so supplemented to be filed pursuant to Rule 424 under (ii) the Securities Act; 24-month anniversary of the effective date of such Shelf Registration) 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 the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement registration statement; provided, however, that at any time, upon written notice to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling participating holders of Registrable Securities and for a period not to exceed forty-five (45) days thereafter (the managing underwriters“Suspension Period”), if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus Company may suspend the use or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) effectiveness of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, registration statement (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of Registrable Securities participating in such offering hereby agree not to offer or sell any Registrable Securities pursuant to such registration statement during the Suspension Period) if the Company reasonably believes that the Company may, in the absence of such suspension hereunder, be required under state or federal securities laws to disclose any corporate development the disclosure of which could reasonably be expected to have a material adverse effect upon the Company, its stockholders, a potentially significant transaction or event involving the Company, or any negotiations, discussions, or proposals directly relating thereto. No more than two (2) such Suspension Periods shall occur in any twelve (12) month period. In the event that the Company shall exercise its rights hereunder, the applicable time period during which the registration statement is to remain effective shall be extended by a period of time equal to the duration of the Suspension Period. The Company may extend the Suspension Period for an additional consecutive thirty (30) days with the consent of the holders of at least a majority of the Registrable Securities being proposed to be sold agree should be included therein relating by the holders participating in such offering. If so directed by the Company, the holders of Registrable Securities shall use their commercially reasonable efforts to deliver to the plan Company (at the Company’s expense) all copies, other than permanent file copies then in such holders’ possession, of distribution with respect the prospectus relating to such Registrable Securities, including, without limitation, information with respect Securities current at the time of receipt of such notice;
5.3 furnish to the number each seller of Registrable Securities being sold to such underwritersnumber of copies of such registration statement, each amendment and supplement thereto, 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 prospectus included 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus registration statement (including each preliminary prospectus) and any amendment or supplement thereto such other documents as such Persons seller may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(h) prior 5.4 use commercially reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; provided such seller (provided, however, that the Company will shall not be required to (a) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subsection, (b) subject itself to taxation in any such jurisdiction or to take any action which would subject it (c) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction);
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the 5.5 promptly notify each seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon , at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, of the happening of any event contemplated by paragraph (c)(6) aboveas a result of which the prospectus included in such registration statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Company shall prepare a reasonable number of copies of a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers sellers of the such Registrable Securities, the Prospectus will 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, in which event the period mentioned in Section 5.2 shall be extended by the length of the period from and including the date when each seller of such Registrable Securities shall have received such notice to the date on which each such seller has received the copies of the supplemented or amended prospectus contemplated under this Section 5.5;
(l) 5.6 cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange and/or quotation system on which similar securities issued by the Company are then listed if requested by the holders of and/or quoted;
5.7 provide a majority of transfer agent and registrar for all such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(n) 5.8 enter into such customary agreements (including an underwriting agreementagreements in customary form) and take all such other actions in connection therewith as the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether (including effecting a stock split or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders a combination of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereundershares);
(o) 5.9 make available for inspection by a representative any seller of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationregistration statement, and any attorney attorney, accountant or accountant other agent retained by the sellers any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderregistration statement;
(p) 5.10 otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the period of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than 45 days after Act and Rule 158 thereunder;
5.11 in the end event of the issuance of any 12-month period (stop order suspending the effectiveness of a registration statement, or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm order suspending or best efforts underwritten offering, preventing the use of any related prospectus or (2) if not sold to underwriters suspending the qualification of any Common Stock included in such an offeringregistration statement for sale in any jurisdiction, beginning with the first month Company shall use its commercially reasonable efforts promptly to obtain the withdrawal of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodssuch order; and
(q) promptly prior 5.12 use its commercially reasonable efforts to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of cause such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the copies sellers thereof to consummate the disposition of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicesuch Registrable Securities.
Appears in 3 contracts
Samples: Merger Agreement (Imc Global Inc), Registration Rights Agreement (Cargill Inc), Registration Rights Agreement (Imc Global Inc)
Registration Procedures. In connection with any registration of Registrable Interests under the Company's registration obligations Securities Act pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts consult with each Equityholder whose equity interest is to effect be included in any such registration concerning the form of underwriting agreement, shall provide to permit such Equityholder the form of underwriting agreement prior to the Company's execution thereof and shall provide to such Equityholder and its representatives such other documents (including comments by the Commission on the Registration Statement) as such Equityholder shall reasonably request in connection with its participation in such registration. The Company will furnish each Equityholder whose Registrable Interests are registered thereunder and each underwriter, if any, with a copy of the Registration Statement and all amendments thereto and will supply each such Equityholder and each underwriter, if any, with copies of any prospectus included therein (including a preliminary prospectus and all amendments and supplements thereto), in such quantities as may be reasonably necessary for the purposes of the proposed sale or distribution covered by such registration. The Company shall not, however, be required to maintain the Registration Statement effective or to supply copies of a prospectus for a period beyond ninety (90) days after the effective date of such Registrable Securities in accordance Registration Statement (or such longer period as is otherwise set forth herein or agreed to by the Company) and, at the end of such period, the Company may deregister any securities covered by such Registration Statement and not then sold or distributed. In the event that the Company prepares and files with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements registration statement on any appropriate form under the Securities Act, which form shall be available Act (a "REGISTRATION STATEMENT") providing for the sale of Registrable Interests held by any Equityholder pursuant to its obligations under this Section 8, the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before Company will:
(i) upon filing a Registration Statement or Prospectus any prospectus related thereto (a "PROSPECTUS") or any amendments or supplements thereto, the Company will furnish to the holders of the Equityholders whose Registrable Securities Interests are covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectdocuments;
(bii) prepare and file with the SEC Commission such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter ninety (90) day period which will terminate when all Registrable Securities covered by such Registration Statement have been soldreferenced in Section 8(e); cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and and, comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the such Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(ciii) promptly notify the selling holders of Registrable Securities Equityholders and the managing underwriters, if any, promptly, and (if requested by any such PersonPerson or entity) confirm such advice in writing, (1A) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2B) of any request by the SEC Commission or any state securities commission for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3C) of the issuance by the Commission or any state securities commission of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities Interests for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose purpose, and (6E) of the happening existence of any event fact which makes any statement made results in the a Registration Statement, the a Prospectus or any document incorporated therein by reference containing an untrue statement of a material fact or which requires the making of any changes in the Registration Statement, the Prospectus omitting to state a material fact required to be stated therein or any document incorporated therein by reference in order necessary to make the statements therein not misleading;
(div) make every use its commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible momentStatement;
(ev) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringEquityholder, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and or the holders of Equityholders holding a majority of the Registrable Securities Interests being sold by Equityholders agree should be included therein relating to the plan sale of distribution with respect to such Registrable SecuritiesInterests, including, including without limitation, limitation information with respect to the number amount of Registrable Securities Interests 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 Interests 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;
(fvi) furnish to each selling holder of Registrable Securities such Equityholder and each managing underwriter, without charge, underwriter at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gvii) deliver to each selling holder of Registrable Securities such Equityholders and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons or entities may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hviii) prior to any public offering Public Sale of Registrable SecuritiesInterests, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration cause to be registered or qualification of qualified such Registrable Securities Interests for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as any seller Equityholder or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities Interests covered by the applicable Registration Statement; provided provided, however, that the Company 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 taxation in any such jurisdiction where it is not then so subject;
(iix) cooperate with the selling holders of Registrable Securities Equityholders and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities Interests to be sold pursuant to such Registration Statement and not bearing any restrictive legends; , and enable such Registrable Securities Interests to be in such denominations and registered in such names as the managing underwriters may request at least two business days Business Days prior to any sale of Registrable Securities Interests to the underwriters;
(jx) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
any fact described in clause (kiii)(E) upon the occurrence of any event contemplated by paragraph (c)(6) aboveabove exists, prepare a supplement or posteffective post-effective amendment to the applicable Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesInterests being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(lxi) cause all Registrable Securities Interests covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(mxii) provide and cause to be maintained a transfer agent and registrar for all such Registrable Interests covered by such registration statement not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(nxiii) enter into obtain an opinion from the Company's counsel and a "cold comfort" letter from the Company's independent public accountants in customary form and covering such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in form, substance and scope matters as are customarily made covered by issuers such opinions and "cold comfort" letters delivered to underwriters in primary underwritten offerings public offerings, which opinion and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) letter shall be reasonably satisfactory to the managing underwritersunderwriter, if any, and to the holders of Equityholders owning a majority in interest of the Registrable Securities Interests being sold) addressed registered in such offering, and furnish to each selling holder Equityholder participating in the offering and the underwritersto each underwriter, if any, covering the matters customarily covered in opinions requested in underwritten offerings a copy of such opinion and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants letter addressed to such Equityholder or underwriter;
(xiv) deliver promptly to each Equityholder participating in the selling holders of Registrable Securities offering and the underwriterseach underwriter, if any, such letters copies of all correspondence between the Commission and the Company, its counsel or auditors and all memoranda relating to be in customary form and covering matters of discussions with the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof Commission or its staff with respect to all parties the Registration Statement, other than those portions of any such correspondence and memoranda which contain information subject to be indemnified pursuant attorney-client privilege with respect to said Section; and (5) the Company, and, upon receipt of such confidentiality agreements as the Company shall deliver may reasonably request, make reasonably available for inspection by any seller of such documents and certificates as may be requested Registrable Interests covered by the holders of a majority of the Registrable Securities being sold and the managing underwriterssuch Registration Statement, by any underwriter, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition to be effected pursuant to such registrationregistration statement and by any attorney, and any attorney accountant or accountant other agent retained by the sellers 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 officers, directors and employees to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement;
(xv) provide a CUSIP number for all Registrable Interests included in such Registration Statement, not later than the effective date of the applicable Registration Statement;
(xvi) enter into such agreements (including an underwriting agreement in form reasonably satisfactory to the Company) and take all such other reasonable actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Interests;
(xvii) make available for inspection by a representative of the Equityholders the Registrable Interests being sold pursuant to such Registration Statement, any underwriter participating in any disposition pursuant to a Registration Statement, and any attorney or accountant retained by such Equityholders or underwriter, all financial and other records, any pertinent corporate documents and properties of the Company reasonably requested by such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons or entities unless disclosure of such records, information or documents is required by court or administrative order;
(pxviii) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SECCommission and relevant state securities commissions, and make generally available to its security holders, earnings the Equityholders earning statements satisfying the provisions of Section 11(a12(a) of the Securities Act, Act no later than 45 forty-five (45) days after the end of any 12-month period (or 90 one-hundred and twenty (120) days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are Interests of such Equityholder is sold to underwriters in a firm or best efforts an underwritten offering, or (2) or, if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the a Registration Statement, which statements shall cover said 12-month periods; and
(qxix) promptly prior take all such other commercially reasonable actions as are necessary or advisable in order to expedite or facilitate the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition disposition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceInterests.
Appears in 3 contracts
Samples: Equityholders Agreement (Dex Media International Inc), Equityholders Agreement (Dex Media Inc), Equityholders Agreement (Dex Media West LLC)
Registration Procedures. In connection with the Company's registration obligations pursuant The procedures to Section 3 hereof, be followed by the Company will use its best efforts and the Holder to effect such registration to permit register the sale of such Registrable Securities pursuant to a Registration Statement in accordance with the intended method or methods of distribution thereofthis Agreement, and pursuant thereto the respective rights and obligations of the Company will and the Holder with respect to the preparation, filing and effectiveness of such Registration Statement, are as expeditiously as possiblefollows:
(a) The Company will (i) prepare and file with the SEC, as soon as practicable, a Registration Statement with the Commission (within the time period specified in Section 2(a)) which Registration Statement (A) shall be on a form required by this Agreement (or Registration Statements on any appropriate form under if not so required, selected by the Securities ActCompany) for which the Company qualifies, which form (B) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof distribution, and (C) shall comply as to form in all material respects with the requirements of the applicable form and include and/or incorporate by reference all financial statements required by the SEC Commission to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and (ii) use best its commercially reasonable efforts to cause such Registration Statement to become effective; effective and remain effective for the period provided under Section 2(a), (iii) use its commercially reasonable efforts to prevent the occurrence of any event that before would cause a Registration Statement to contain a material misstatement or omission or to be not effective and usable for resale of the Registrable Securities registered pursuant thereto (during the period that such Registration Statement is required to be effective as provided under Section 2(a)), and (iv) cause each Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of such Registration Statement, amendment or supplement, (x) to comply in all material respects with any requirements of the Securities Act and the rules and regulations of the Commission and (y) not to 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 (provided, however, the Company shall have no liability for any information furnished in writing by or on behalf of the Holder to the Company specifically for inclusion in (including by incorporation by reference) any such Registration Statement that has not been corrected in a subsequent writing to the Company prior to the filing or other disclosure of such information). The Company will, (1) at least three (3) Business Days prior to the anticipated filing of a Registration Statement or any related Prospectus or any amendments amendment or supplements theretosupplement thereto (including any documents incorporated by reference therein), the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement Holder and the underwriters, if any, its counsel copies of all such documents proposed to be filed, which documents will filed and make such representatives of the Company as shall be subject to reasonably requested by the reasonable review Holder available for discussion of such holders documents, (2) use its commercially reasonable efforts to address in each such document prior to being so filed with the Commission such comments as the Holder or its counsel reasonably shall propose within two (2) Business Days of receipt of such copies by the Holder and underwriters, and the Company will (3) not file any Registration Statement or amendment thereto or any related Prospectus or any amendment or supplement thereto containing information regarding the Holder to which the holders Holder objects, unless such information is required to comply with any applicable law or regulation.
(b) The Company will as promptly as reasonably practicable (i) prepare and file with the Commission such amendments, including post-effective amendments, and supplements to each Registration Statement and the Prospectus used in connection therewith as (A) may be reasonably requested by the Holder of a majority of the Registrable Securities covered by such Registration Statement necessary to permit the Holder to sell in accordance with its intended method of distribution or (B) may be necessary under applicable law to keep such Registration Statement continuously effective with respect to the underwritersdisposition of all Registrable Securities covered thereby for the period provided under Section 2(a) in accordance with the intended method of distribution and, if anysubject to the limitations contained in this Agreement, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and post-effective amendments additional Registration Statements in order to register for resale under the Registration Statement as may be necessary to keep Securities Act all of the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered held by such Registration Statement have been sold; the Holder, (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus prospectus supplement, and as so supplemented or amended, to be filed pursuant to Rule 424 under 424, (iii) respond to any comments received from the Securities Act; Commission with respect to each Registration Statement or Prospectus or any amendment thereto, and (iv) as promptly as reasonably practicable, provide the Holder true and complete copies of all correspondence from and to the Commission relating to such Registration Statement or Prospectus other than any comments that the Company determines in good faith would result in the disclosure to the Holder of material non-public information concerning the Company that is not already in the possession of the Holder.
(c) The Company will comply in all material respects with the provisions of the Securities Act and the Exchange Act (including Regulation M under the Exchange Act) with respect to each Registration Statement and the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;each Registration Statement.
(cd) The Company will notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and Holder as promptly as reasonably practicable: (if requested by any such Person) confirm such advice in writing, (1i)(A) when the a Registration Statement, any pre-effective amendment, any Prospectus or any Prospectus prospectus supplement or post-effective amendment has been to a Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments on such Registration Statement (in which case the Company shall provide true and complete copies thereof and all written responses thereto to the Holder and its counsel, and, other than information which the Company determines in good faith would constitute material non-public information that is not already in the possession of the Holder); and (C) with respect to the each Registration Statement or any post-effective amendmentamendment thereto, when the same has become been declared effective, ; (2ii) of any request by the SEC Commission or any other federal or state governmental or regulatory authority for amendments or supplements to the a Registration Statement or the Prospectus or for additional informationinformation (whether before or after the effective date of the Registration Statement) or any other correspondence with the Commission or any such authority relating to, or which may affect, the Registration Statement; (3iii) of the issuance by the Commission or any other governmental or regulatory authority of any stop order, injunction or other order or requirement suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or preventing or suspending the use of any Prospectus or the initiation or threatening of any proceedings Proceedings for that such purpose, ; (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction jurisdiction, or the initiation or threatening of any proceeding Proceeding for such purpose and purpose; or (6v) of the happening occurrence of any event which that makes any statement made in the such Registration Statement, the Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires if, as a result of such event or the making passage of any changes in the time, such Registration Statement, the Prospectus or other documents requires revisions so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any document incorporated untrue statement of a material fact or omit to state any material fact required to be stated therein by reference in order 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;, or if, for any other reason, it shall be necessary during such time period to amend or supplement such Registration Statement or Prospectus in order to comply with the Securities Act, which shall correct such misstatement or omission or effect such compliance.
(de) make every The Company will use its commercially reasonable effort efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any stop order or other order suspending the effectiveness of a Registration Statement, or preventing or suspending the Registration Statement at use of any Prospectus, or (ii) any suspension of the earliest possible moment;
qualification (eor exemption from qualification) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority any of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securitiesfor sale in any jurisdiction, including, without limitation, information with respect to the number 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 reasonable practicable, or if any such order or suspension is made effective during any Suspension Period, as soon as reasonable practicable after the matters to be incorporated in such Prospectus supplement or post-effective amendment;Suspension Period is over.
(f) During the Shelf Period, the Company will furnish to each selling holder of Registrable Securities the Holder and each managing underwriterits counsel upon their request, without charge, at least one signed conformed copy of the each Registration Statement and any post-effective each amendment thereto, including financial statements and schedules, all documents incorporated therein by reference thereto and all exhibits to the extent requested by the Holder or its counsel (including those incorporated by reference);) promptly after the filing of such documents with the Commission.
(g) The Company will promptly deliver to each selling holder of Registrable Securities the Holder and the underwriters, if any, without charge, its counsel as many copies of the each Prospectus or Prospectuses (including each preliminary form of prospectus) and any each amendment or supplement thereto as such Persons the Holder or its counsel may reasonably request; request in order to facilitate the disposition of the Registrable Securities by the Holder. The Company hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, Holder in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any amendment or supplement thereto;, so long as the same are used in compliance with the Securities Act and all other applicable laws and regulations.
(h) prior to any public offering To the extent that the Company has certificated shares of Registrable SecuritiesCompany Common Stock, register or qualify or the Company will cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a Registration Statement, which certificates shall be free of all restrictive legends indicating that the Registrable Securities are unregistered or unqualified for resale under the Securities Act, Exchange Act or other applicable securities laws, and not bearing any restrictive legends; and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters Holder may request at least two business days prior to any sale in writing. In connection therewith, if required by the Company’s transfer agent, the Company will promptly, after the effective date of Registrable Securities the Registration Statement, cause an opinion of counsel as to the underwriters;
(j) use its best efforts to cause effectiveness of the Registrable Securities covered by the applicable Registration Statement to be registered delivered to and maintained with or approved such transfer agent, together with any other authorizations, certificates and directions required by the transfer agent which authorize and direct the transfer agent to issue such other governmental agencies or authorities as may be necessary to enable Registrable Securities without any such legend upon sale by the seller or sellers thereof or the underwriters, if any, to consummate the disposition Holder of such Registrable Securities;Securities pursuant to the Registration Statement.
(ki) upon Upon the occurrence of any event contemplated by paragraph (c)(6) aboveSection 3(d)(v), as promptly as reasonably practicable, the Company will prepare a supplement or posteffective amendment amendment, including a post-effective amendment, if required by applicable law, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference or reference, and file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securitiesdelivered, the no Registration Statement nor any Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein (in the case of a Prospectus, in light of the circumstances under which they were made) not misleading;
(l) cause all Registrable Securities covered by , such that the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the Holder can resume disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement Registration Statement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;Prospectus.
(oj) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the The Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise will use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SECCommission, the Trading Market and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; andFINRA.
(qk) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Holder agrees by its acquisition of such Registrable Securities that, upon receipt of any a notice from the Company of the happening occurrence of any event of the kind described in clauses (ii) through (v) of Section 6(k3(d) hereofor the occurrence of a Suspension Period, such holder the Holder will forthwith discontinue disposition of such Registrable Securities under the applicable Registration Statement until such holder's the Holder’s receipt of the copies of the supplemented supplemental Prospectus or amended Prospectus contemplated by Section 6(k) hereof, Registration Statement or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and and, in either case, has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such noticeor Registration Statement. In the event the Company shall give any such notice, the time periods regarding period during which the maintenance of such applicable Registration Statement is required to be maintained effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the Holder either receives the copies of the supplemented Prospectus or amended prospectus contemplated Registration Statement or is advised in writing by Section 6(kthe Company that the use of the Prospectus may be resumed.
(l) hereof If such Registrable Securities are to be sold by any method or in any transaction other than on a national securities exchange or in the Adviceover-the-counter market, in privately negotiated transactions, or in a combination of such methods, the Holder shall notify the Company at least five Business Days prior to the date on which the Holder first offers to sell any such Registrable Securities.
Appears in 3 contracts
Samples: Registration Rights Agreement (Armata Pharmaceuticals, Inc.), Registration Rights Agreement (Armata Pharmaceuticals, Inc.), Registration Rights Agreement (Armata Pharmaceuticals, Inc.)
Registration Procedures. In connection with (a) Whenever the Company's registration obligations Stockholder requests that any Registrable Common Stock be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its reasonable best efforts to effect such effect, as soon as practical as provided herein, the registration to permit and the sale of such Registrable Securities Common Stock in accordance with the intended method or methods of distribution disposition thereof, and and, pursuant thereto thereto, the Company will shall, as expeditiously soon as possiblepractical as provided herein:
(ai) subject to the other provisions of this Agreement, use reasonable best efforts to prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof Common Stock and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effectiveeffective (unless it is automatically effective upon filing); provided that and before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement Stockholder and the underwritersunderwriters or other distributors, if any, identified by the Stockholder copies of all such documents proposed to be filed, which including documents will be subject incorporated by reference in the Prospectus and, if requested by the Stockholder, one set of the exhibits incorporated by reference, and the Stockholder and a single counsel selected by the Stockholder (“Stockholder’s Counsel”) shall have a reasonable opportunity to review and comment on the Registration Statement and each such Prospectus (and each amendment or supplement thereto) before it is filed with the SEC, and the Stockholder shall have the opportunity to object to any information pertaining to the reasonable review of such holders and underwriters, Stockholder that is contained therein and the Company will not file make the corrections reasonably requested by the Stockholder with respect to such information prior to filing any Registration Statement or amendment thereto or any Prospectus or any amendment or supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectthereto;
(bii) use reasonable best efforts to prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to comply with the applicable requirements of the Securities Act and to keep the such Registration Statement effective for the applicable periodrelevant period required hereunder, or such shorter period which will terminate when all Registrable Securities but no longer than is necessary to complete the distribution of the Common Stock covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplementStatement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all securities the Common Stock covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution by the sellers thereof disposition set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(ciii) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible momentqualification or exemption from qualification of any Registrable Common Stock for sale in any jurisdiction in the United States;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(fiv) furnish to each selling holder of Registrable Securities the Stockholder and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many conformed copies of each Registration Statement and amendment thereto and copies of each supplement thereto promptly after they are filed with the SEC (but only one set of exhibits thereto need be provided); and deliver, without charge, such number of copies of the preliminary and final Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons the Stockholder may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities Common Stock of the Stockholder covered by such Registration Statement in conformity with the Prospectus or any amendment or supplement theretorequirements of the Securities Act;
(hv) prior use reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale Common Stock under the such other securities or blue sky laws of such U.S. jurisdictions as any seller or underwriter the Stockholder reasonably requests and continue such registration or qualification in writing and do any and all other acts or things necessary or advisable to enable the disposition effect in such jurisdictions of for as long as the Registrable Securities covered by the applicable Registration Statement; Statement may be required to be kept effective under this Agreement (provided that the Company will not be required to (1) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph (v), (2) subject itself to taxation in any such jurisdiction or to take any action which would subject it (3) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction);
(ivi) cooperate with notify the selling holders of Registrable Securities Stockholder 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition each distributor of such Registrable Securities;
(k) upon Common Stock identified by the Stockholder, at any time when a Prospectus relating thereto is required under the Securities Act to be delivered by such distributor, of the occurrence of any event contemplated by paragraph (c)(6) aboveas a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits a material fact necessary to make the statements therein not misleading, prepare and, at the request of the Stockholder, the Company shall use reasonable best efforts to prepare, as soon as practical, and in any event within two Business Days, a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable SecuritiesCommon Stock, the such Prospectus will 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;
(lvii) in the case of an underwritten offering in which the Stockholder participates pursuant to a Demand Registration, Piggyback Registration or an S-3 Registration, enter into an underwriting agreement containing such provisions (including provisions for indemnification, lockups, opinions of counsel and comfort letters) as are customary and reasonable for an offering of such kind, and take all such other customary and reasonable actions as the managing underwriters of such offering may request in order to facilitate the disposition of such Registrable Common Stock (including, making members of senior management of the Company available to participate in “road-show” and other customary marketing activities);
(viii) in the case of an underwritten offering in which the Stockholder participates pursuant to a Demand Registration, Piggyback Registration or an S-3 Registration, and to the extent not prohibited by applicable law or pre-existing applicable contractual restrictions, (A) make reasonably available, for inspection by the Stockholder, Stockholder’s Counsel, the managing underwriters of such offering and one counsel (and one accountant) for such managing underwriter, pertinent corporate documents and financial and other records of the Company and its subsidiaries and controlled Affiliates, (B) cause all Registrable Securities covered the Company’s officers and employees to supply information reasonably requested by the Registration Statement Stockholder or such managing underwriters or attorney in connection with such offering and (C) make the Company’s independent accountants available for any such managing underwriters’ due diligence; provided, however, that such records and other information shall be subject to such confidential treatment as is customary for underwriters’ due diligence reviews;
(ix) use reasonable best efforts to cause all such Registrable Common Stock to be listed on each securities exchange on which similar securities of the same class issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(mx) provide a transfer agent and registrar for all such Registrable Common Stock not later than the effective date of the such Registration Statement and, a reasonable time before any proposed sale of Registrable Common Stock pursuant to a Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanyCommon Stock to be sold, subject to the provisions of Section 11;
(nxi) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, shareholders a consolidated earnings statements satisfying the provisions statement (which need not be audited) for a period of Section 11(atwelve (12) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, months beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration StatementStatement as soon as reasonably practicable after the end of such period, which statements earnings statement shall cover said 12-month periodssatisfy the requirements of an earning statement under Section 11(a) of the Securities Act and Rule 158 thereunder; and
(qxii) promptly prior notify the Stockholder and the managing underwriters of any underwritten offering:
(1) when the Registration Statement, any pre-effective amendment, the Prospectus or any Prospectus supplement or any post-effective amendment to the filing 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 document which is request by the SEC for amendments or supplements to be incorporated by reference into the Registration Statement or the Prospectus or for any additional information regarding the Stockholder;
(after initial filing 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
(xiii) keep Stockholder’s Counsel reasonably apprised as to the intention and progress of the Company with respect to any Registration Statement hereunder, including by providing Stockholder’s Counsel with copies of all written correspondence with the SEC in connection with any Registration Statement or Prospectus filed hereunder. For the avoidance of doubt, the provisions of clauses (vii), provide copies (viii) and (xi) of such document this Section 7(a) shall apply only in respect of an underwritten offering and only if (based on market prices at the time the offering is requested by the Stockholder) the number of shares of Registrable Common Stock to counsel be sold in the offering would yield gross proceeds to the selling holders Stockholder of Registrable at least the Minimum Amount. Notwithstanding any provision of this Agreement, the Company shall not be obligated to prepare for inclusion in any Registration Statement any audited financial statements for any period other than a fiscal year of the Company beginning on or after October 1, 2012 or any unaudited financial statements for any period other than a first, second or third fiscal quarter of any such fiscal year.
(b) No Registration Statement (including any amendments thereto) 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, and no Prospectus (including any supplements thereto) shall contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, except for any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact made in reliance on and in conformity with written information furnished to the Company by or on behalf of NAB or the Stockholder or any underwriter or other distributor specifically for use therein.
(c) At all times after the Company has filed a registration statement with the SEC pursuant to the requirements of the Securities Act and until the Termination Date, the Company shall use reasonable best efforts to continuously maintain in effect the registration statement of Common Stock under Section 12 of the Exchange Act and to use reasonable best efforts to file all reports required to be filed by it under the managing underwritersSecurities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, if any, make all to the Company's representatives available for discussion of such document and make such changes in such document extent required to enable the Stockholder to be eligible to sell Registrable Common Stock pursuant to Rule 144 under the Securities Act prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. Termination Date.
(d) The Company may require the Stockholder and each seller distributor of Registrable Securities Common Stock as to which any registration is being effected to furnish to the Company such any other information regarding such Person and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities request.
(e) The Stockholder agrees by acquisition of such having its stock treated as Registrable Securities Common Stock hereunder that, upon receipt of any notice from being advised in writing by the Company of the happening occurrence of an event pursuant to Section 7(a)(vi), the Stockholder will immediately discontinue (and direct any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition other Persons making offers and sales of Registrable Securities until such holder's receipt Common Stock to immediately discontinue) offers and sales of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or Registrable Common Stock until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, resumed and has received copies of any additional is furnished with a supplemented or supplemental filings which are incorporated amended Prospectus as contemplated by reference in the ProspectusSection 7(a)(vi), and, if so directed by the Company, such holder the Stockholder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's the Stockholder’s possession, of the Prospectus covering such Registrable Securities Common Stock current at the time of receipt of such notice.
(f) The Company may prepare and deliver an issuer free-writing prospectus (as such term is defined in Rule 405 under the Securities Act) in lieu of any supplement to a prospectus, and references herein to any “supplement” to a Prospectus shall include any such issuer free-writing prospectus. In Neither the event Stockholder nor any other seller of Registrable Common Stock may use a free-writing prospectus to offer or sell any such stock without the Company’s prior written consent.
(g) It is understood and agreed that any failure of the Company to file a registration statement or any amendment or supplement thereto or to cause any such document to become or remain effective or usable within or for any particular period of time as provided in Section 2, 4 or 7 or otherwise in this Agreement, due to reasons that are not reasonably within its control, or due to any refusal of the SEC to permit a registration statement or prospectus to become or remain effective or to be used because of unresolved SEC comments thereon (or on any documents incorporated therein by reference) despite the Company’s good faith and diligent efforts to resolve those comments, shall not be a breach of this Agreement. However, neither shall any such failure relieve the Company of its obligations hereunder to use reasonable best efforts to remedy such failure.
(h) It is further understood and agreed that the Company shall give not have any obligations under this Section 7 at any time on or after the Termination Date, unless an underwritten offering in which the Stockholder participates has been priced but not completed prior to the Termination Date, in which event the Company’s obligations under this Section 7 shall continue with respect to such noticeoffering until such offering is completed or for 15 business days, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicewhichever is shorter.
Appears in 3 contracts
Samples: Registration Rights Agreement (National Australia Bank LTD), Registration Rights Agreement (Great Western Bancorp, Inc.), Registration Rights Agreement (Great Western Bancorp, Inc.)
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to Section 3 hereofthe provisions of this Agreement, the Company will Parent shall use its best commercially reasonable efforts to effect such registration to permit the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Parent shall as expeditiously soon as possiblereasonably practicable and as applicable:
(a) subject to Section 2, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become be declared effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities subject thereto for a period ending on the earlier of (i) 6 months after the effective date of such Registration Statement during and (ii) the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of date on which all the Registrable Securities covered thereby not being able subject thereto have been sold pursuant to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableRegistration Statement;
(c) notify the selling holders of Registrable Securities and the managing underwriterswithin a reasonable time before filing such Registration Statement, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements thereto with the Commission, furnish to the Registration Statement or the Prospectus or for additional information, (3) of the issuance one counsel selected by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should included in such Registration Statement, Prospectus or amendments or supplements thereto copies of such documents proposed to be included therein relating filed, which documents shall be subject to the plan review, comment and approval of distribution such counsel;
(d) notify each selling holder of Registrable Securities, promptly after Parent receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed with respect the Commission;
(e) furnish to each selling holder of Registrable Securities such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto (in each case including all exhibits and documents incorporated by reference therein) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(f) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as any selling holder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holders; provided, that Parent shall not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this Section 5(f);
(g) notify each selling holder of such Registrable Securities, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, Parent shall prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) make available for inspection by any selling holder of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of Parent, and cause Parent’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement;
(i) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed;
(k) in connection with an Underwritten Offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, information making appropriate officers of Parent available to participate in “road show” and other customary marketing activities (including one-on-one meetings with respect to the number 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 prospective purchasers 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 amendmentSecurities));
(fl) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its holders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than thirty (30) days after the end of the 12-month period beginning with the first day of Parent’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if Parent timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) furnish to each selling holder of Registrable Securities and each managing underwriter, without chargeif any, at least one signed copy with (i) a written legal opinion of Parent’s outside counsel, dated the closing date of the Registration Statement offering, in form and substance as is customarily given in opinions of registrants’ counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort” letter signed by Parent’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(n) without limiting Section 5(f), use its commercially reasonable efforts to cause such Registrable Securities 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 Parent to enable the seller or sellers thereof or the underwriters, if any, holders of such Registrable Securities to consummate the disposition of such Registrable SecuritiesSecurities in accordance with their intended method of distribution thereof;
(ko) upon notify the occurrence holders of Registrable Securities promptly of any event contemplated request by paragraph the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(c)(6p) aboveadvise the holders of Registrable Securities, prepare a supplement promptly after it shall receive notice or posteffective amendment to obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the related Prospectus initiation or threatening of any document incorporated proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(q) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a Controlling Person of Parent, to participate in the preparation of such Registration Statement and to require the insertion therein by reference or file any other required document so thatof language, as thereafter delivered furnished to Parent in writing, which in the purchasers reasonable judgment of such holder and its counsel should be included;
(r) cooperate with the holders of the Registrable SecuritiesSecurities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that Parent may satisfy its obligations hereunder without issuing physical stock certificates through the Prospectus will not contain an untrue statement use of a material fact or omit to state any material fact necessary to make the statements therein not misleadingfacilities of The Depository Trust Company (“DTC”);
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(ms) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanyDTC; provided, that Parent may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of DTC;
(nt) enter into such agreements (including an underwriting agreement) and take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to Parent, Parent will take all commercially reasonable action to make any such prohibition inapplicable; and
(u) otherwise use its commercially reasonable efforts to take all other actions in connection therewith in order steps necessary to expedite or facilitate effect the disposition registration of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 2 contracts
Samples: Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement (KLX Energy Services Holdings, Inc.)
Registration Procedures. In connection with the Company's registration obligations filing of any Registration Statement pursuant to Section Sections 2 or 3 hereof, the Company will use its best efforts to shall (and shall cause each Guarantor to) effect such registration registrations to permit the sale of such Registrable Securities securities covered thereby in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company will as expeditiously as possible:hereunder, the Company shall (and shall cause each Guarantor to):
(a) prepare Prepare and file with the SEC, SEC as soon as practicablepracticable after the date hereof but in any event on or prior to the Filing Date, a the Exchange Offer Registration Statement or if the Exchange Offer Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale Statement is not filed because of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required circumstances contemplated by the SEC to be filed therewithSection 2(i), cooperate and assist in any filings required to be made with the NASDa Shelf Registration Statement as prescribed by Section 3, and use its best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided that that, if (1) a Shelf Registration Statement is filed pursuant to Section 3 or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto, before filing a any Registration Statement or Prospectus or any amendments or supplements theretothereto the Company shall (and shall cause each Guarantor to), if requested, furnish to and afford the Holders of the Transfer Restricted Securities to be registered pursuant to such Shelf Registration Statement Statement, each Participating Broker-Dealer, the managing underwriters, if any, and each of their respective counsel, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least five Business Days prior to such filing). The Company will furnish and each Guarantor shall not file any such Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Holders must provide information for the inclusion therein without the Holders being afforded an opportunity to review such documentation if the holders of a majority in aggregate principal amount of the Registrable Transfer Restricted Securities covered by such Registration Statement and Statement, or any such Participating Broker-Dealer, as the case may be, the managing underwriters, if any, copies or any of all their respective counsel shall reasonably object in writing on a timely basis. A Holder shall be deemed to have reasonably objected to such documents filing if such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders contains an untrue statement of a majority 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 Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;Act.
(b) prepare Provide an indenture trustee for the Transfer Restricted Securities or the Exchange Notes, as the case may be, and cause the Indenture (or other indenture relating to the Transfer Restricted Securities) to be qualified under the TIA not later than the effective date of the first Registration Statement; and in connection therewith, to effect such changes to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use its best efforts to cause such trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective amendments and post-effective amendments to the each Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be, as may be necessary to keep the such Registration Statement continuously effective for the applicable periodEffectiveness Period or the Applicable Period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldas the case may be; cause the related Prospectus to be supplemented by any Prospectus supplement required Prospectus supplementby applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act and the Exchange Act applicable to them with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus. The Company and each Guarantor shall not, during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it Applicable Period, voluntarily takes take any action that would result in selling holders Holders of the Registrable Transfer Restricted Securities covered thereby by a Registration Statement or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Transfer Restricted Securities or such Exchange Notes during that period period, unless such action is required under by applicable law, provided that the foregoing shall not apply to actions taken rule or regulation or permitted by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;this Agreement.
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect Furnish to such Registrable Securitiesselling Holders and Participating Broker-Dealers who so request in writing (i) upon the Company’s receipt, including, without limitation, information with respect to the number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed a copy of the order of the SEC declaring such Registration Statement and any post-effective amendment theretothereto effective, (ii) such reasonable number of copies of such Registration Statement and of each amendment and supplement thereto (in each case including financial statements and schedules, all any documents incorporated therein by reference and all exhibits (including those incorporated by referenceexhibits);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.,
Appears in 2 contracts
Samples: Registration Rights Agreement (RAAM Global Energy Co), Registration Rights Agreement (Windstar Energy, LLC)
Registration Procedures. In connection with the Company's registration obligations Registration to be effected pursuant to Section 3 hereofthe Resale Shelf Registration Statement, and whenever the Company will holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to this Agreement or have initiated a takedown offering, Pubco shall use its reasonable best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Pubco shall as expeditiously as reasonably possible:
(a) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities ActStatement, which form shall and all amendments and supplements thereto and related prospectuses as may be available for the sale of the necessary to comply with applicable securities laws, with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause such Registration Statement to become effective; effective (provided that at least two (2) Business Days before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will Pubco shall furnish to counsel selected by the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, Applicable Approving Party copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comment of such holders and underwriterscounsel, and no such document shall be filed with the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto Commission to which the holders of a majority of the Registrable Securities covered by such Registration Statement any Investor or the underwriters, if any, shall its counsel reasonably objectobjects);
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders each holder of Registrable Securities and the managing underwriters, if any, promptly, and of (if requested by any such PersonA) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the any Registration Statement or the initiation of any proceedings for that purpose, (4B) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company Pubco or its counsel 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 purpose, and (6C) the effectiveness of each Registration Statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement and the prospectus used in connection therewith current, effective and available for the resale of all of the Registrable Securities required to be covered thereby for a period ending when all of the securities covered by such Registration Statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such Registration Statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such Registration Statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) 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 the sellers thereof set forth in such Registration Statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that Pubco shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such Registration Statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a Registration Statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) subject to the MNPI Provisions after receipt thereof, of any request by the Commission for the amendment or supplementing of such Registration Statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which makes the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any statement made in fact necessary to make the Registration Statementstatements therein not misleading, and, at the Prospectus or any document incorporated therein by reference untrue or which requires the making request of any changes in such seller, Pubco promptly shall prepare, file with the Registration StatementCommission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the Prospectus purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any document incorporated therein by reference in order fact necessary to make the statements therein not misleading;
(dh) make every reasonable effort cause all such Registrable Securities to obtain be listed on each securities exchange on which similar securities issued by Pubco are then listed and, if similar securities are not so listed, to be listed on a securities exchange and, without limiting the withdrawal of any order suspending the effectiveness generality of the Registration Statement foregoing, to arrange for at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment least two market makers to register as such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable SecuritiesSecurities with FINRA;
(i) if applicable, including, without limitation, information promptly effect a filing with FINRA pursuant to FINRA Rule 5110 (or successor thereto) with respect to the number public offering contemplated by resales of Registrable Securities being sold to such underwriterssecurities under the Resale Shelf Registration Statement (an “Issuer Filing”), pay the purchase price being paid therefor filing fee required by such underwriters Issuer Filing and with respect use its reasonable best efforts to any other pursue the Issuer Filing until FINRA issues a letter confirming that it does not object to the terms of the underwritten offering contemplated by the Resale Shelf Registration Statement.
(or best efforts underwrittenj) offering of the provide a transfer agent and registrar for all such Registrable Securities to be sold in such offering; and make all required filings not later than the effective date 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 amendmentRegistration Statement;
(fk) furnish to each selling holder of Registrable Securities enter into and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits perform such customary agreements (including those incorporated by reference);
(gunderwriting agreements in customary form) deliver to each selling holder of Registrable Securities and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without chargelimitation, if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, participating in such number of “road shows”, investor presentations and marketing events as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as underwriters managing such Persons offering may reasonably request);
(l) make available for inspection by a representative of the Investors, other than the Deerfield Investors (such representative to be selected by the Majority TOI Investors), a representative of the Deerfield Investors, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such representative or underwriter, all financial and other records, pertinent corporate and business documents and properties of Pubco as shall be reasonably requested to enable them to exercise their due diligence responsibility, and cause Pubco’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such representative, underwriter, attorney, accountant or agent in connection with such Registration Statement; provided, however, that any such representative or underwriter enters into a confidentiality agreement, in form and substance reasonably satisfactory to Pubco, prior to the Company consents release or disclosure of any such information;
(m) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Demand Registration (including any Shelf Registration) or Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission;
(o) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of Pubco to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to Pubco in writing, which in the reasonable judgment of such holder and its counsel should be included;
(p) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the Prospectus or qualification of any amendment or supplement thereto by each Common Stock included in such Registration Statement for sale in any jurisdiction, use its reasonable best efforts promptly to obtain the withdrawal of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the such order;
(q) use its reasonable best efforts to cause such Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kr) upon cooperate with the occurrence holders of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or and the managing underwritersunderwriter 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 Registration Statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(ms) not later than the effective date cooperate with each holder of Registrable Securities covered by the Registration Statement, provide a CUSIP number for all Registrable Securities Statement and provide the applicable trustee(s) each underwriter or transfer agent(s) with printed certificates for the Registrable Securities which are agent participating in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(t) if such connection, whether or not an underwriting agreement is entered into and whether or not the registration is includes an underwritten registration (1) make such representations public offering, use its reasonable best efforts to obtain a cold comfort letter from Pubco’s independent public accountants and warranties addressed 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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering such matters of the type customarily covered in "by cold comfort" comfort letters by as the underwriters in connection with primary such registration reasonably request;
(u) provide a legal opinion of Pubco’s outside counsel, dated the effective date of such Registration Statement (and, if such registration includes an underwritten offerings; (4) if an Public Offering, dated the date of the closing under the underwriting agreement is entered intoagreement), the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties the Registration Statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(v) if Pubco files an Automatic Shelf Registration Statement covering any Registrable Securities, use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(w) if Pubco does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be indemnified sold;
(x) subject to the terms of Section 2(c) and Section 2(d), if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when Pubco is required to re-evaluate its WKSI status Pubco determines that it is not a WKSI, use its reasonable best efforts to refile the Registration Statement on Form S-3 and keep such Registration Statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such Registration Statement is required to be kept effective;
(y) cooperate with each Investor that holds Registrable Securities being offered and the managing underwriter or underwriters with respect to an applicable Registration Statement, if any, to facilitate the timely (i) preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to said Section; such Registration Statement, and enable such certificates to be registered in such names and in such denominations or amounts, as the case may be, or (5ii) the Company shall deliver such documents and certificates as may be requested by the holders of a majority crediting of the Registrable Securities being sold and to be offered pursuant to a Registration Statement to the applicable account (or accounts) with The Depository Trust Company (“DTC”) through its Deposit/Withdrawal At Custodian (“DWAC”) system, in any such case as such Investor or the managing underwriter or underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information may reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodsrequest; and
(qz) promptly prior for so long as this Agreement remains effective, (a) cause the Common Stock to be eligible for clearing through DTC, through its DWAC system; (b) be eligible and participating in the Direct Registration System (DRS) of DTC with respect to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus Common Stock; (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(kc) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company ensure that the use of transfer agent for the Prospectus may be resumedCommon Stock is a participant in, and has received copies that the Common Stock is eligible for transfer pursuant to, DTC’s Fast Automated Securities Transfer Program (or successor thereto); and (d) use its reasonable best efforts to cause the Common Stock to not at any time be subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, including the clearing of any additional or supplemental filings which are incorporated by reference in the Prospectusshares of Common Stock through DTC, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give Common Stock becomes subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, use its reasonable best efforts to cause any such notice, “chill,” “freeze” or similar restriction to be removed at the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceearliest possible time.
Appears in 2 contracts
Samples: Registration Rights Agreement (Oncology Institute, Inc.), Merger Agreement (DFP Healthcare Acquisitions Corp.)
Registration Procedures. In (i) Whenever the Company shall file a Registration Statement pursuant hereto, the Company shall (A) thereafter, for such period of time as shall be required in connection with the Company's registration obligations pursuant to Section 3 hereoftransactions contemplated thereby and permitted by applicable rules, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofregulations and administrative practice, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments and supplements thereto or to the prospectus contained therein and all filings under the Securities Exchange Act of 1934 that are necessary or appropriate so that neither the Registration Statement as may be necessary nor any related prospectus shall contain any material misstatement or omission relative to keep the Company or any of its assets or its business or affairs and so that the Registration Statement effective for the applicable period, or and such shorter period which prospectus will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and otherwise comply with all applicable legal requirements, subject to the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
Paragraph 2(b) (ciii) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writingabove, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(fB) furnish to each selling holder the Selling Holders of the registered Registrable Securities and each managing underwriter, without charge, at least one signed copy such number of copies of the Registration Statement and any related preliminary prospectus, prospectus, post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons Selling Holders reasonably may request, and (C) take all action that may be necessary under the securities or Blue Sky laws of any state and as reasonably request; may be requested to permit the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the public offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Registered Securities covered by the Registration Statement; provided provided, however, that in no event shall the Company will not be required obligated to qualify generally to do business in any jurisdiction where it is not then so now qualified or to take any action which would subject it to general service of process in suits, other than those arising out of the offering or sale of the Registrable Securities, in any such jurisdiction where it is not then so now subject;
(i) cooperate . In connection 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities the Company shall deliver to such Selling Holders and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into any underwriters such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connectionindemnities, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriterscontribution agreements, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel and letters of independent public accountants as are then customarily given to underwriters of registered public offerings and selling security holders. The underwriters and such Selling Holders shall deliver to the Company and updates thereof (which counsel such indemnities, contribution agreements and opinions as are then customarily given to issuers of registered public offerings.
(ii) Anything in form, scope and substance) shall be reasonably satisfactory this Agreement to the managing underwriterscontrary notwithstanding, if any, and the holders of Company shall not be obligated to file a majority Registration Statement unless the Selling Holders of the Registrable Securities being sold) addressed registered shall have furnished the Company in writing all information with respect to such Selling Holders, the Registrable Securities held by such Selling Holders requested to be so included, the transaction or transactions which such Selling Holders contemplate and each selling holder and the underwritersunderwriter, if any, covering who will act for such Selling Holders in connection therewith, that any law, rule or regulation requires to be disclosed therein.
(iii) The Company covenants that it will file the matters customarily covered reports required to be filed by it under the Securities Exchange Act of 1934, as in opinions effect from time to time, and the rules and regulations adopted by the Securities and Exchange Commission thereunder, and will deliver to Masco at its request a written statement affirming that it has complied with such requirements.
(iv) Whenever a Registration Statement is requested with respect to Subordinated Debentures, the Company will enter into an indenture on substantially similar terms and conditions (but not materially inconsistent with the terms of such Subordinated Debentures) as those contained in underwritten offerings the Indenture dated as of November 1, 1986 between the Company and such Morgxx Xxxranty Trust Company of New York. The trustee designated by the Company to act as trustee under the Indenture shall be a bank or trust company or national banking association which has a combined capital and surplus in excess of $50,000,000.
(v) The Company will, at it own expense, take whatever action is necessary to cause all Registrable Securities registered pursuant to these registration rights to be listed on a national securities exchange or to be included for quotation in the over-the-counter market as reported by the National Association of Securities Dealers Automated Quotation System or similar organization.
(vi) All expenses (other matters as may be reasonably requested by such holders than fees (including underwriters' discounts and underwriters; (3commissions) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed expenses of any underwriters and counsel to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters Selling Holders) in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same registrations undertaken pursuant hereto shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into borne by the Company. The above , provided, however, that if Masco withdraws or abandons its request, then Masco shall reimburse the Company for all expenses reasonably incurred by the Company in complying with such request.
(vii) Masco shall be done at each closing under such underwriting deemed to be the representative of all Selling Holders, with full authority to select a managing underwriter, withdraw or similar agreement or as abandon the Registration Statement, and to the extent required thereunder;make comparable decisions on behalf of all Selling Holders after reasonable consultation therewith.
(oviii) The Company will make available for inspection by a representative of the holders of a majority of the Registrable Securitiesany Selling Holder, any underwriter participating in any disposition pursuant to such registration, a Registration Statement and any attorney attorney, accountant or accountant other professional retained by any Selling Holder or any such underwriter (collectively, the sellers or underwriter"Inspectors"), all financial and other records, pertinent corporate documents and properties of the CompanyCompany (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 such representative, underwriter, attorney or accountant Inspectors in connection with such registration; provided that any recordsregistration statement. Records which the Company determines, information or documents that in good faith, to be confidential and which it notifies the Inspectors are designated confidential shall not be disclosed by the Company in writing as confidential shall be kept confidential by such Persons Inspectors unless (i) the disclosure of such records, information Records is necessary to avoid or documents correct a misstatement or omission in such Registration Statement or (ii) the release of such Records is required by ordered pursuant to a subpoena or other order from a court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules of competent jurisdiction. Information obtained as a result of such inspections shall be deemed confidential and regulations shall not be used as the basis for any market transactions in the securities of the SEC, Company unless and make until such is made generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writingpublic. Each holder of Registrable Securities agrees by acquisition Selling Holder of such Registrable Securities thatwill, upon receipt learning that disclosure of any such Records is sought in a court of competent jurisdiction, give notice from to the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by allow the Company, such holder will deliver at its expense, to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, undertake appropriate action to prevent disclosure of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceRecords deemed confidential.
Appears in 2 contracts
Samples: Registration Agreement (Mascotech Inc), Registration Agreement (Masco Corp /De/)
Registration Procedures. In connection with the Company's registration obligations Whenever Executive has requested that any of Executive’s Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will Corporation shall use its reasonable best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Corporation shall as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, Securities and Exchange Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the registration statement with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use reasonable best efforts to cause such Registration Statement registration statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements theretoeffective as soon as practicable thereafter, in each case in accordance with the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement Act and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders applicable rules and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectregulations promulgated thereunder;
(b) notify in writing Executive of the effectiveness of each registration statement filed hereunder and prepare and file with the SEC Securities and Exchange Commission such amendments and amendments, post-effective amendments and supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableregistration statement;
(c) furnish to Executive a number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free-Writing Prospectus (as defined in Rule 405 of the Securities Act) and such other documents as Executive may reasonably request in order to facilitate the disposition of the Registrable Securities owned by Executive;
(d) promptly notify in writing Executive, at any time when a prospectus relating thereto is required to be delivered under the selling holders Securities Act, of the happening of any event as a result of which the prospectus included in such registration statement (i) contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made or (ii) is otherwise not legally available to support sales of Registrable Securities, and, at the request of Executive, the Corporation shall promptly prepare and furnish to Executive a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made;
(e) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Corporation are then listed;
(f) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such registration statement;
(g) enter into and perform such customary agreements (including underwriting agreements in customary form) in order to expedite or facilitate the disposition of Registrable Securities (including, without limitation, a stock split or combination);
(h) otherwise use reasonable best efforts to comply with all applicable rules and regulations of the managing underwriters, if any, promptly, Securities and Exchange Commission;
(if requested by any such Personi) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) event of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement a registration statement, or the initiation of any proceedings for that purpose, (4) if at any time order suspending or preventing the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company use of any notification with respect to the suspension of related prospectus or suspending the qualification of the Registrable Securities any equity securities included in such registration statement for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statementjurisdiction, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every Corporation shall use reasonable effort best efforts promptly to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwritersorder;
(j) use its reasonable best efforts to cause the such Registrable Securities covered by the applicable Registration Statement 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Piggyback Registration hereunder complies in all material respects with the occurrence of any event contemplated by paragraph (c)(6) aboveSecurities Act, prepare a supplement or posteffective amendment is filed in accordance with the Securities Act to the Registration Statement or extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related Prospectus or any document incorporated therein by reference or file any other required document so thatprospectus, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an any untrue statement of a material fact or omit to state any a material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities obtain one or the managing underwritersmore “cold comfort” letters, if any;
(m) not later than dated the effective date of such registration statement (and, if such registration includes an underwritten Public Offering, dated the Registration Statement, provide a CUSIP number for all Registrable Securities and provide date of the applicable trustee(s) or transfer agent(s) with printed certificates for closing under the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and underwriters), from the underwriters, if any, such letters to be Corporation’s independent public accountants in customary form and covering such matters of the type customarily covered in "cold comfort" by such letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderregistered offering reasonably request;
(om) make available for inspection by provide a representative legal opinion of the holders of a majority of the Registrable SecuritiesCorporation’s outside counsel, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after dated the effective date of such registration statement (or, if such registration includes an underwritten Public Offering, dated the Registration Statementdate of the closing under the underwriting agreement and addressed to the underwriters), which statements shall cover said 12-month periodswith respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature; and
(qn) promptly cooperate with Executive to facilitate the timely preparation and delivery of certificates (or electronic notation through the use of The Depository Trust Corporation's Direct Registration System) representing the Registrable Securities to be sold pursuant to such registration statement or Rule 144 free of any restrictive legends and representing such number of shares of common stock registered in such names as Executive may reasonably request in a reasonable period of time prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders sales of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented registration statement or amended prospectus contemplated by Section 6(k) hereof or the AdviceRule 144.
Appears in 2 contracts
Samples: Executive Employment Agreement (Aquestive Therapeutics, Inc.), Executive Employment Agreement (Aquestive Therapeutics, Inc.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts to effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement on Form S-3 (or Registration Statements on any appropriate form equivalent successor form) under the Securities Act, which form shall be Act available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including documents that would be incorporated or deemed to be incorporated therein by reference), the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and their counsel (the underwriters, if any, "Special Counsel") copies of all such documents proposed to be filed, which documents and will be subject to the reasonable review of provide such holders and underwriters, the Special Counsel five days to review and the comment on such documents. The Company will not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents which, upon filing, would be incorporated or deemed to be incorporated by reference therein) to which the holders of a majority of the Registrable Securities covered by such Registration Statement or and the underwriters, if anySpecial Counsel, shall reasonably objectobject on a timely basis;
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldspecified in Section 3; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablesupplemented;
(c) notify Notify the selling holders of Registrable Securities and the managing underwriters, if anySpecial Counsel, promptly, and (if requested by any such Personperson) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC or any other federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4iv) if at any time the representations and warranties of the Company contained in any agreement contemplated by paragraph Section 4(m) hereof (oincluding any underwriting agreement) below cease to be true and correct, (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6vi) of the happening occurrence of any event which makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which requires the making of any changes in a Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading and, in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated or is necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vii) of the Company's determination that a post-effective amendment to a Registration Statement would be appropriate;
(d) make Use every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;
(e) if If requested by the managing underwriter or underwriters or holders of a holder majority of the Registrable Securities being sold in connection with an underwritten offeringregistered, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the such holders of a majority of the Registrable Securities being sold 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 number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor as may be required by such underwriters applicable law and with respect to any other terms of the underwritten (or best efforts underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company will not be required to take any actions under this Section 4(e) that are not, in the opinion of counsel for the Company, in compliance with applicable law;
(f) furnish Furnish to each selling holder of Registrable Securities and each managing underwriter, the Special Counsel without charge, at least one signed conformed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed incorporated therein by reference and all exhibits (including those incorporated exhibits, unless requested in writing by referencesuch holder or counsel);
(g) deliver Deliver to each selling holder of Registrable Securities and the underwriters, if any, Special Counsel without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; and the Company hereby consents to the use of the such Prospectus or any each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;
(h) prior Prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel Securities 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 any seller or underwriter reasonably requests in writing writing; keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions jurisdiction of the Registrable Securities covered by the applicable Registration Statement; provided provided, however that the Company will not be required to (i) qualify generally to do business in any jurisdiction where in which it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where in which it is not then so subject;
(i) cooperate 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 sold, which certificates will not bearing bear any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause Cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States except as may be required solely as a consequence of the nature of such selling holder's business, in which case the Company will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon Upon the occurrence of any event contemplated by paragraph (c)(6Section 4(c)(vi) aboveor 4(c)(vii) hereof, prepare a supplement or posteffective post-effective amendment to the each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers Investors of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) Use its best efforts to cause all Registrable Securities covered by the such Registration Statement to be listed on each the NASDAQ Small Cap National Market or any other securities exchange exchange, if any, on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter Enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith (including those requested by the holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1i) make such representations and warranties to the holders of such Registrable Securities and the underwritersSecurities, if any, with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) 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 managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to such selling holders of Registrable Securities and each selling holder and of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters, including without limitation the matters referred to in clause (i) above; (3iii) use its best efforts to obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to the each selling holders holder of Registrable Securities and the underwriters, if anySecurities, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5iv) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, Special Counsel to evidence the continued validity of the representations and warranties of the Company and its subsidiaries made pursuant to clause (i) above and to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other similar agreement entered into by the Company. The above shall foregoing actions will be done at taken in connection with each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(on) make Make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationSecurities being sold, and Special Counsel or any attorney or accountant retained by the sellers or underwritersuch selling holders, all financial and other records, pertinent corporate documents and properties of the CompanyCompany and its subsidiaries, and cause the Company's officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by the Company in writing as confidential shall at the time of delivery of such records, information or documents will be kept confidential by such Persons persons unless (i) such records, information or documents are in the public domain or otherwise publicly available, (ii) disclosure of such records, information or documents is required by court or administrative orderorder or is necessary to respond to inquires of regulatory authorities, or (iii) disclosure of such records, information or documents, in the opinion of counsel to such person, is otherwise required by law (including without limitation pursuant to the requirements of the Securities Act);
(po) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings holders 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 45 calendar days after the end of any 12-month period (or 90 days, calendar days after the end of any 12-month period if such period is a fiscal year) (1) commencing at on the end first day of any the first fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing , after the effective date of the a Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestperiod. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities Registrable Securities as the Company may may, from time to time time, reasonably request in writingwriting and the Company may exclude from such registration the Registrable Securities of any seller who unreasonably fails to furnish such information within five days after receiving such request. Each holder of Registrable Securities agrees will be deemed to have agreed by virtue of its acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 6(k4(c)(ii), 4(c)(iii), 4(c)(v), 4(c)(vi) or 4(c)(vii) hereof, such holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k4(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in the such Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall period prescribed in Section 3(a) hereof will be extended by the number of days during the time period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received (x) the copies of the supplemented or amended prospectus Prospectus contemplated by Section 6(k4(k) hereof or (y) the Advice.
Appears in 2 contracts
Samples: Registration Rights Agreement (Frisby Technologies Inc), Registration Rights Agreement (Frisby Technologies Inc)
Registration Procedures. In connection with If and whenever the Company's registration obligations pursuant Company is required to Section 3 hereofregister Registrable Securities in a Demand Registration, the Company will use its best all commercially reasonable efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods plan of distribution thereof. With respect to both Demand Registrations and Piggyback Registrations (except as otherwise specifically provided), and pursuant thereto the Company will as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, SEC as soon as practicable, practicable a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best all commercially reasonable efforts to cause such Registration Statement to become effective and remain continuously effective until the date that is the earlier to occur of (1) the date six months from the date such Registration Statement was declared effective; provided , and (2) the date the last of the Registrable Securities covered by such Registration Statement have been sold, provided, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will shall furnish to the holders Holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, draft copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders Holders and such underwriters, and the Company will shall not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority any of the Registrable Securities covered by such Registration Statement Holders or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement Statement, and such supplements to the Prospectus, as may be necessary requested by any underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when until all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period are sold in accordance with the intended method or methods plan of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) promptly notify the selling holders Holders of Registrable Securities and the managing underwritersunderwriter, if any, promptly, and (if requested by any such Person) confirm such advice in writing, :
(1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, ,
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, ,
(3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, ,
(4) if at any time the representations and warranties of the Company contemplated by clause (1) of paragraph (o) below cease to be true and correct, accurate in all material respects,
(5) 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 and purpose, and
(6) of the happening existence of any event fact which makes any statement made results in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingcontaining a Misstatement;
(d) make every all commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentpracticable time;
(e) unless the Company objects in writing on reasonable grounds, if requested by the managing underwriter or underwriters or a holder the Holders of more than 50% of the Registrable Securities then outstanding, each of such Holders (on behalf of itself and all permitted assignees who are Holders of Registrable Securities being sold in connection with an underwritten offeringSecurities), as promptly as practicable, incorporate in a Prospectus supplement or post-effective amendment amendment, such information as the managing underwriters underwriter and the holders Holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan sale of distribution with respect to such the Registrable Securities, including, without limitation, information with respect to the number of shares of Registrable Securities being sold to such underwriters, the purchase price being paid therefor therefore by such underwriters and with respect to any other terms of the underwritten (or best efforts underwritten) offering 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;
(f) only with respect to Demand Registrations, promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement) provide copies of such document to counsel to each of the Holders of Registrable Securities (on behalf of itself and all permitted assignees who are Holders of Registrable Securities) and to the managing underwriter, if any, and make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for the Holders of Registrable Securities or underwriters may reasonably request;
(g) furnish to each selling holder Holder of Registrable Securities and each the managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gh) deliver to each selling holder of the Holders of Registrable Securities (on behalf of each selling Holder of Registrable Securities) and the underwriters, if any, without charge, as many copies of the each Prospectus (including and each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; request (the Company consents hereby consenting to the use of the each such Prospectus (or any amendment or supplement thereto preliminary prospectus) by each of the selling holders Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus (or any amendment or supplement theretopreliminary prospectus));
(hi) prior to any public offering of Registrable Securities, use all commercially reasonable efforts to register or qualify or cooperate coordinate with the selling holders Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller such Holders, or underwriter reasonably requests such underwriters may designate in writing and do any and all other acts or things anything else necessary or advisable to enable from a legal perspective the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(ij) cooperate with the selling holders Holders of Registrable Securities and the managing underwritersunderwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold and not bearing any restrictive legends; and enable cause such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriter may request at least two three (3) business days prior to any sale of Registrable Securities to the underwriters;
(jk) use its best all commercially reasonable efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kl) upon if the occurrence of any event contemplated by paragraph (c)(6) aboveRegistration Statement or the Prospectus contains a Misstatement, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleadingMisstatement;
(lm) use all commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each any national securities exchange on which similar the Company's securities issued by the Company are then listed listed, or to be authorized for quotation on Nasdaq, if requested by any of the holders Holders (on behalf of a majority each Holder and all permitted assignees who are Holders of such Registrable Securities Securities) or the managing underwritersunderwriter, if any; PROVIDED, HOWEVER, that the payment of any required listing or other fee shall always be deemed to be "commercially reasonable" for purposes of this SECTION 5(m);
(mn) provide a CUSIP number for all Registrable Securities not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(no) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith do anything else reasonably necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Underwritten Registration:
(1) make such representations and warranties to the holders Holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters holders and underwriters, respectively, in primary similar underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; 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 managing underwritersunderwriter, if any, and the holders each of a majority such Holders (on behalf of the itself and all permitted assignees who are Holders of Registrable Securities being soldSecurities)) addressed to each selling holder Holder of Registrable Securities and the underwritersunderwriter, if any, covering the matters customarily covered in opinions requested delivered to holders and underwriters, respectively, in similar underwritten offerings and such other matters as may be reasonably requested by any of the Holders or such holders and underwriters; ;
(3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders Holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters to holders and underwriters, respectively, in connection with primary similar underwritten offerings; ;
(4) if an underwriting agreement is entered into, cause the same shall set forth in full the to include customary indemnification and contribution provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Sectionsuch underwriters; and and
(5) the Company shall deliver such documents and certificates as may be reasonably requested by the holders of a majority each of the Holders of Registrable Securities being sold (on behalf of itself and all permitted assignees who are Holders of Registrable Securities) and the managing underwritersunderwriter, if any, to evidence compliance with clause (k1) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderotherwise reasonably requested by each of the Holders of Registrable Securities (on behalf of itself and all permitted assignees who are Holders of Registrable Securities);
(op) make available for inspection by a representative representatives of each of the holders Holders of a majority Registrable Securities (on behalf of the itself and all permitted assignees who are Holders of Registrable Securities), any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney or accountant retained by the sellers or any such underwriter, all financial and other records, records and pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney seller or accountant underwriter in connection with such registrationthe Registration; provided provided, that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;; and
(pq) otherwise use its best all commercially reasonable efforts to comply with all applicable rules and regulations of the SECSEC relating to such Registration, and make generally available to its security holders, holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 forty-five (45) calendar days after the end of any twelve (12-) month period (or 90 ninety (90) calendar days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offeringan Underwritten Offering, or (2) or, if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceperiod.
Appears in 2 contracts
Samples: Registration Rights Agreement (Luxtec Corp /Ma/), Registration Rights Agreement (General Electric Capital Corp)
Registration Procedures. In Whenever the Company is required to effect a registration hereunder (or, as applicable, requested to assist in connection with the Company's a sale under a shelf registration obligations pursuant to Section 3 hereofstatement), the Company will shall use its reasonable best efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as practicable, and pursuant thereto the Company will and, in connection with any such request, as expeditiously as possibleapplicable:
(a) The Company shall as expeditiously as reasonably practicable prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate form under the Securities Act, and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method or methods of distribution thereof thereof, and shall include all financial statements required by the SEC use its reasonable best efforts to be (i) cause such filed therewithregistration statement to become and remain effective, cooperate and assist in (ii) promptly update such registration statement so that it does not contain an untrue statement of a material fact or omit to state any filings material fact required to be made with stated therein or necessary to make the NASDstatements therein not misleading, and use best efforts to cause until all of the Registrable Securities included in such Registration Statement to become effectiveregistration statement shall have actually been sold thereunder; provided that before that, at the request of any Holder, the intended method of distribution relating to the sale of the Registrable Securities to be registered thereunder shall provide for individual Holders to be named as selling stockholders under such registration statement.
(b) Prior to filing a Registration Statement registration statement or Prospectus prospectus or any amendments amendment or supplements supplement thereto, the Company will shall, if requested, furnish to the holders each Holder and each underwriter, if any, of the Registrable Securities covered by such Registration Statement and the underwriters, if any, registration statement copies of all such documents registration statement as proposed to be filed, which and thereafter the Company shall furnish to each Holder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents will be subject incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such other documents as a Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder. The Holders shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to the reasonable review of such holders and underwritersHolders, and the Company will shall use its reasonable best efforts to comply with such request, provided, however, that the Company shall not file have any Registration Statement or amendment thereto or obligation so to modify any Prospectus or any supplement thereto information if the Company reasonably expects that so doing would cause the prospectus to which the holders contain an untrue statement of a majority material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) After the filing of the Registrable Securities covered by such Registration Statement or registration statement, the underwriters, if any, Company shall reasonably object;
(bi) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus related prospectus to be supplemented by any required Prospectus prospectus supplement, and and, as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and , (ii) 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 during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers Holders thereof set forth in such Registration Statement registration statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith prospectus and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company (iii) promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission Holders of any stop order suspending the effectiveness of the Registration Statement issued or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt threatened 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus SEC or any document incorporated therein by reference untrue state securities commission and take all reasonable best efforts to prevent the entry of such stop order or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;remove it if entered.
(d) make every The Company shall use its reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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 underwrittento (i) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement register or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of qualify the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the such registration or qualification of statement under such Registrable Securities for offer and sale under the other securities or “blue sky sky” laws of such jurisdictions in the United States as any seller or underwriter the Holders reasonably requests (in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions light of the Registrable Securities covered by the Registration Statement; provided that the Company 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 Holders’ intended plan of process in any such jurisdiction where it is not then so subject;
distribution) requests and (iii) 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 cause such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the seller or sellers thereof or the underwriters, if any, a Holder to consummate the disposition of the Registrable Securities owned by such Registrable Securities;Holder, provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.9(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(ke) upon The Company shall immediately notify the Holders, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any an event contemplated by paragraph (c)(6) above, prepare requiring the preparation of a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;misleading and promptly prepare and make available to the Holders and file with the SEC any such supplement or amendment.
(lf) cause all Registrable Securities covered by The Company shall select an underwriter or underwriters in connection with any Underwritten Offering; provided that, in the event of a Demand Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities Lxxxxx Holders or the managing underwritersVestar Holders, if any;
(m) not later than such underwriter or underwriters shall be selected by the effective date Lxxxxx Holders or the Vestar Holders, as the case may be, with the consent of the Registration StatementCompany (which consent shall not be unreasonably withheld). In connection with any Underwritten Offering, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) Company shall enter into such customary agreements (including an underwriting agreementagreement in customary form) and take all such other actions in connection therewith as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities and in any such connectionUnderwritten Offering, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties including, to the holders extent necessary, the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with the FINRA.
(g) Subject to the execution of confidentiality agreements satisfactory in form and substance to the Company in the exercise of its good faith judgment, the Company will give to the Holders, their counsel and accountants (i) reasonable and customary access to its books and records, that, in the opinion of the Board are pertinent corporate documents, and (ii) such Registrable Securities opportunities to discuss the business of the Company with its directors, officers, employees, counsel and the underwritersindependent public accountants who have certified its financial statements, as shall be appropriate, in the reasonable judgment of counsel, to the Holders, to enable them to exercise its due diligence responsibility.
(h) The Company shall use its reasonable best efforts to furnish to the Holders and to each such underwriter, if any, in forma signed counterpart, substance and scope as are customarily made by issuers addressed to underwriters in primary underwritten offerings and covering matters includingthe Holders or such underwriter, but not limited to, those set forth in the Purchase Agreement; of (2i) obtain an opinion or opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substanceii) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" comfort letter or comfort letters and updates thereof from the Company's ’s independent certified public accountants addressed to the selling holders of Registrable Securities and the underwritersaccountants, if any, such letters to be each in customary form and covering such matters of the type kind customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered intoopinions or comfort letters, as the same shall set forth in full case may be, as the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold Holder and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;underwriters reasonably request.
(oi) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company Each Holder shall promptly furnish in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such Holder that is reasonably necessary for the distribution of such securities the Registrable Securities as the Company may from time to time reasonably request and such other information regarding such Holder as may be legally required or advisable in writing. connection with such registration.
(j) Each holder of Registrable Securities Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof2.9(e), such holder will Holder shall forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Holder’s Registrable Securities until such holder's Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus2.9(e), and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) Holders shall destroy all copies, other than any permanent file copies then in such holder's Holder’s possession, of the Prospectus most recent prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event If the Company shall give any such notice, the time periods regarding Company shall extend the maintenance of period during which such Registration Statement registration statement shall be extended maintained effective (including the period referred to in Section 2.9(a)) by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(62.9(e) hereof to and including the date when each seller the Company shall make available to the Holders a prospectus supplemented or amended to conform with the requirements of Section 2.9(e).
(k) The Company shall use its reasonable best efforts to list all Registrable Securities covered by such Registration Statement registration statement on any securities exchange or quotation system on which any of the Registrable Securities are then listed or traded.
(l) The Company shall have received the copies appropriate officers of the supplemented Company (i) prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, (ii) take other actions to obtain ratings for any Registrable Securities and (iii) otherwise use their reasonable best efforts to cooperate as reasonably requested by the underwriters in the offering, marketing or amended prospectus selling of the Registrable Securities.
(m) The Company shall use its reasonable best efforts to take all other steps necessary to effect the registration of Registrable Securities contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 2 contracts
Samples: Registration Rights Agreement (Vestar Capital Partners Iv Lp), Registration Rights Agreement (Lovell Minnick Partners LLC)
Registration Procedures. In connection with the (a) With respect to any Piggyback Registration, Company's registration obligations pursuant , subject to Section 3 hereofsubsections 2(e) above, the Company will respectively, shall use its best reasonable efforts to effect such the registration of all Executive's Parity Registrable Shares that Executive has requested to permit the sale of such Registrable Securities be included therein in accordance accordance, subject to subsections 2(d), with the intended method or methods method(s) of distribution thereofthereof reasonably promptly, and pursuant thereto in connection with any such request, Company shall do the Company will as expeditiously as possiblefollowing:
(a1) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements registration statement on any appropriate form under the Securities Act, for which form shall be Company then qualifies and that is available for the sale registration of the Registrable Securities Shares requested to be registered in accordance with the intended method or methods method(s) of distribution thereof thereof, include (subject to subsections 2(d) and shall include 2(e) above) in the registration on such form all financial statements required by the SEC Registrable Shares requested to be filed therewith, cooperate and assist in any filings required to be made with the NASDincluded, and use best reasonable efforts to cause such Registration Statement registration statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b2) prepare and file with the SEC such amendments and post-effective amendments and supplements to the Registration Statement registration statement or any prospectus as may be necessary to keep the Registration Statement registration statement effective for a period that shall terminate on the applicable period, earlier of forty-five (45) days after the registration statement is officially declared effective by the SEC or such shorter period which will terminate when all Executive's Parity Registrable Securities Shares covered by such Registration Statement registration statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Actdisposed of; and comply with all applicable rules and regulations of the SEC and with the provisions of the Securities Act applicable to Company with respect to the disposition of all securities Executive's Parity Registrable Shares covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof Executive set forth in such Registration Statement registration statement (as it may be amended) or any supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableprospectus;
(c3) notify the selling holders of Registrable Securities and the managing underwritersExecutive, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time when a prospectus relating to Executive's Parity Registrable Shares covered by the representations and warranties registration statement is required to be delivered under the Securities Act, of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening occurrence of any event as a result of which makes any the preliminary prospectus or prospectus included in such registration statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference prospectus supplement contains any untrue statement of a material fact or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order omits to state a material fact necessary to make the statements therein in light of the circumstances under which they were made, not misleading;
(d) make every reasonable effort to obtain , and Company shall, as promptly as reasonably practicable thereafter, prepare and file with the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters SEC and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare Executive a supplement or posteffective amendment to the Registration Statement such preliminary prospectus, prospectus or the related Prospectus or any document incorporated therein by reference or file any other required document prospectus supplement so that, as thereafter delivered to the prospective purchasers of the Executive' Parity Registrable SecuritiesShares being distributed by Executive, the Prospectus will such preliminary prospectus, prospectus or prospectus supplement shall not contain an any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l4) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by Executive, Company shall cooperate and shall promptly incorporate in a prospectus supplement or post-effective amendment to the holders registration statement at Executive's cost and expense such information concerning Executive and its intended method of a majority distribution as it reasonably requests to be included therein (and which is not inappropriate, in the reasonable judgment of Company, after consultation with its outside legal counsel), including, without limitation, with respect to any change in the intended method of distribution, the amount or kind of Parity Registrable Shares being offered by Executive, the offering price for such Parity Registrable Shares or any other terms of the offering or distribution of the Registrable Shares and make all required filings of such Registrable Securities prospectus supplement or post-effective amendment as soon as possible after being notified of the managing underwriters, if anymatters to be incorporated in such prospectus supplement or post-effective amendment;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement on or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document date on which the registration statement is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)declared effective, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.use
Appears in 2 contracts
Samples: Employment Agreement (Powercerv Corp), Employment, Noncompetition, Development and Confidentiality Agreement (Powercerv Corp)
Registration Procedures. In connection with If and whenever WIND is required to effect the Company's registration obligations pursuant to of any Registrable Securities under the Securities Act as provided in Section 2 or Section 3 hereof, the Company will use its best efforts to WIND shall effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto WIND shall cooperate in the Company will sale of the securities and shall, as expeditiously as reasonably possible:
(a) prepare Prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities by the holders thereof or WIND in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith(including, cooperate and assist in any filings required to be made with the NASDwithout limitation, a Partner Distribution), and use its reasonable best efforts to cause such Registration Statement to become effectiveeffective and to remain effective as provided herein; provided provided, however, that no later than ten (10) days before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including, the Company will without limitation, documents that would be incorporated or deemed to be incorporated therein by reference), WIND shall furnish or otherwise make available to the holders of the Registrable Securities covered by such Registration Statement Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will . WIND shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement amendments or supplements thereto (including, without limitation, such documents that, upon filing, would be incorporated or deemed to be incorporated by reference therein) with respect to a Demand Registration to which the holders of a majority of the Registrable Securities covered by such Registration Statement Statement, their counsel, or the managing underwriters, if any, shall reasonably object;, unless, in the opinion of WIND and its counsel, such filing is necessary to comply with applicable law.
(b) prepare Prepare and file with the SEC Commission such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause continuously effective during the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; period provided herein and comply in all material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during Statement; and cause the applicable period in accordance related Prospectus to be supplemented by any Prospectus supplement as may be necessary to comply with the intended method or methods provisions of distribution the Securities Act with respect to the disposition of the securities covered by the sellers thereof set forth in such Registration Statement Statement, and as so supplemented to be filed pursuant to Rule 424 (or supplement to any similar provisions then in force) under the ProspectusSecurities Act; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes provided, however, that any action that would result in selling holders holder of the Registrable Securities covered thereby not being able that has been included on a “shelf” registration statement may request that such holder’s Registrable Securities be removed from such registration statement, in which event WIND shall promptly either withdraw such registration statement or file a post-effective amendment to sell such registration statement removing such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Securities.
(c) notify the Notify each selling holders holder of Registrable Securities Securities, its counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any notice from the Commission that there will be a review of a Registration Statement and, to the extent requested by a holder of Registrable Securities, promptly provide such holders, their counsel and the managing underwriters, if any, with a copy of any SEC comments received by WIND in connection therewith, (iii) of any request by the SEC Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iv) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4v) if at any time the representations and warranties of the Company WIND contained in any agreement (including, without limitation, any underwriting agreement) contemplated by paragraph (oSection 5(o) below cease to be true and correct, (5vi) of the receipt by the Company WIND 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 jurisdiction, or the initiation or threatening of any proceeding for such purpose purpose, and (6vii) of the happening of any event which that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the Prospectus statements therein, in light of the circumstances under which they were made, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any document incorporated therein by reference material fact necessary in order to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(d) make every Use its reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction.
(e) if If requested by the managing underwriter underwriters, if any, or underwriters or a any holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate include in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriters, if any, and such holders may reasonably request in order to permit the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan intended method of distribution with respect to of such Registrable Securities, including, without limitation, information with respect to the number 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; securities and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified of the matters to be incorporated in practicable after WIND has received such Prospectus supplement or post-effective amendment;request.
(f) furnish Furnish or make available to each selling holder of Registrable Securities Securities, its counsel and each managing underwriter, if any, without charge, at least one signed copy five conformed copies of the Registration Statement Statement, the Prospectus and any Prospectus supplements, if applicable, and each post-effective amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated exhibits, unless requested by referencesuch holder, counsel or underwriter);.
(g) deliver Deliver to each selling holder of Registrable Securities Securities, its counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectusform of Prospectus) and any each amendment or supplement thereto as such Persons may reasonably requestrequest in connection with the distribution of the Registrable Securities; and WIND, subject to the Company last paragraph of this Section 5, hereby consents to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or and any such amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel 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 “Blue Sky” laws of such jurisdictions within the United States as any seller or underwriter reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and to take any and all other acts or things action that may be necessary or advisable to enable such holders of Registrable Securities to consummate the disposition of such Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdiction; provided provided, however, that the Company WIND will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;.
(i) Unless the Registrable Securities to be sold are uncertificated, cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any legends) representing Registrable Securities to be sold and not bearing any restrictive legends; after receiving written representations from each holder of such Registrable Securities that the Registrable Securities represented by the certificates so delivered by such holder will be transferred in accordance with the Registration Statement, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriters, if any, or holders may request at least two business days (2) Business Days prior to any sale of Registrable Securities in a firm commitment public offering, but in any other such sale, within ten (10) Business Days prior to having to issue the underwriters;securities.
(j) use Use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States, except as may be required solely as a consequence of the nature of such selling holder’s business, in which case WIND will cooperate in all reasonable respects with the filing of such Registration Statement and the granting of such approvals, as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;.
(k) upon Upon the occurrence of any event contemplated by paragraph subsection (c)(6c)(vii) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) Prior to the effective date of the Registration Statement relating to the Registrable Securities, provide a CUSIP number for the Registrable Securities.
(m) Provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by the such Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of from and after a majority of such Registrable Securities or the managing underwriters, if any;
(m) date not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;.
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use Use its reasonable best efforts to comply with cause all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller shares of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.to be authorized to be listed on
Appears in 2 contracts
Samples: Registration Rights Agreement (First Wind Holdings Inc.), Registration Rights Agreement (First Wind Holdings Inc.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided PROVIDED that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided PROVIDED that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided PROVIDED that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided PROVIDED that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Registration Rights Agreement (LTC Equity Holding Co Inc), Registration Rights Agreement (LTC Healthcare Inc)
Registration Procedures. In (a) If and whenever the Company is required to use reasonable efforts to effect the registration of any Registrable Securities under the Securities Act and in connection with the Company's registration obligations any distribution of Registered Securities pursuant to Section 3 hereofthereto as provided in this Agreement, the Company will shall as promptly as reasonably practicable, subject to the other provisions of this Agreement:
(i) use its best reasonable efforts to prepare and file with the SEC a Registration Statement to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, of such securities and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and thereafter use best reasonable efforts to cause such Registration Statement to become effectiveand remain effective pursuant to the terms of this Article V; provided provided, however, that the Company may discontinue any registration of its securities which are not Registrable Securities at any time prior to the effective date of the Registration Statement relating thereto; provided, further, that before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements thereto, the Company will furnish to the holders of the which are including Registrable Securities covered by in such Registration Statement and the underwriters, if anyregistration (“Selling Holders”), copies of all such documents proposed to be filed, which documents will be subject to the review and reasonable review of such holders and underwriters, and comment (which comments will be considered in good faith by the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority Company) of the Registrable Securities covered by such Registration Statement or the underwriters, counsel (if any, shall reasonably object) to such holders;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary and to the extent required by applicable law to keep the such Registration Statement effective and Available pursuant to the terms of this Article V;
(iii) use reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(iv) use reasonable efforts to provide and cause to be maintained a transfer agent and registrar for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause from and after a date not later than the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions effective date of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(cv) as promptly as practicable notify in writing the selling holders of Registrable Securities and of the managing underwritersfollowing events: (A) the filing of the Registration Statement, if anyany amendment thereto, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus prospectus or any Prospectus prospectus supplement related thereto or post-effective amendment has been filedto such Registration Statement, and, with respect to the such Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, ; (2B) of any request by the SEC or any other U.S. or state governmental authority for amendments or supplements to the such Registration Statement or the Prospectus prospectus or for additional information, ; (3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement or the initiation of any proceedings by any person for that purpose, ; (4D) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in under the securities or “blue sky” laws of any jurisdiction or the initiation or threatening threat of any proceeding for such purpose purpose; and (6E) of upon the happening of any event which that makes any statement made in the such Registration Statement, the Prospectus Statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such registration statement, prospectus or documents so that, in the case of such Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(dvi) make every use reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of such Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;
qualification (eor exemption from qualification) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority any of the Registrable Securities being sold agree should for sale in any jurisdiction at the earliest reasonable practicable date, except that the Company shall not for any such purpose be included therein relating required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction wherein it would not but for the plan requirements of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number 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 this clause (or best efforts underwrittenix) offering of the Registrable Securities be obligated to be sold so qualified, (B) subject itself to taxation in any such offering; and make all required filings jurisdiction or (C) file a general consent to service of process in any such Prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendmentjurisdiction;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hvii) prior to any public offering of Registrable Securities, use reasonable efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel Selling Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale under the applicable state securities or “blue sky sky” laws of such those jurisdictions within the United States as any seller or underwriter holder reasonably requests in writing and do any and all other acts to keep each such registration or things necessary qualification (or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by exemption therefrom) effective until the Registration StatementTermination Date; provided provided, that the Company will not be required to (A) qualify generally to do business as a foreign corporation or as a dealer in securities in any jurisdiction where wherein it is would not then but for the requirements of this clause (xi) be obligated to be so qualified qualified, (B) subject itself to taxation in any such jurisdiction or (C) file a general consent to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;jurisdiction; and
(iviii) use reasonable efforts to cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates or book-entry securities representing Registrable Securities to be sold delivered to a transferee pursuant to the Registration Statements, which certificates or book-entry securities shall be free, to the extent permitted by the Indenture and not bearing any applicable law, of all restrictive legends; , and to enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters any such holders may request at least two business days prior in writing; and in connection therewith, if required by the Company’s transfer agent, the Company will promptly after the effectiveness of the Registration Statement cause to be delivered to its transfer agent when and as required by such transfer agent from time to time, any authorizations, certificates, directions and other evidence required by the transfer agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the holder of such shares of Registrable Securities to under the underwriters;Registration Statement.
(jb) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as The Company may be necessary to enable the seller or sellers thereof or the underwritersrequire each Selling Holder and each underwriter, if any, to consummate the disposition of such Registrable Securities;
(ki) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by furnish the Company are then listed if requested by in writing such information regarding each Selling Holder or underwriter and the holders of a majority distribution of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writingwriting to complete or amend the information required by such Registration Statement and/or any other documents relating to such registered offering, and (ii) execute and deliver, or cause the execution or delivery of, and to perform under, or cause the performance under, any agreements and instruments reasonably requested by the Company to effectuate such registered offering, including, without limitation, opinions of counsel and questionnaires. Each holder If the Company requests that the holders of Registrable Securities agrees by acquisition take any of the actions referred to in this Section 5.03(b), such holders shall take such action promptly and as soon as reasonably practicable following the date of such Registrable Securities that, request.
(c) Each Selling Holder agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in clauses (B), (C), (D) and (E) of Section 6(k) hereof5.03(a)(v), such holder will Selling Holder shall forthwith discontinue such Selling Holder’s disposition of Registrable Securities pursuant to the applicable Registration Statement and prospectus relating thereto until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it Selling Holder is advised in writing (the "Advice") by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in such prospectus. The Company shall use reasonable efforts to cure the Prospectusevents described in clauses (B), and(C), if (D) and (E) of Section 5.03(a)(v) so directed by that the Company, such holder will deliver to use of the Company (applicable prospectus may be resumed at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceearliest reasonably practicable moment.
Appears in 2 contracts
Samples: Purchase Agreement (2U, Inc.), Purchase Agreement (2U, Inc.)
Registration Procedures. In connection with Whenever any Representative Holder or the Company's registration obligations Investors (each, a “Registering Security Holder”) requests that any Registrable Securities be registered pursuant to Section 3 hereof5.1 or Section 5.2, the Company will use its best reasonable efforts to effect such the registration to permit the sale of such Registrable Securities in accordance with as promptly as is practicable, including the intended method or methods of distribution thereof, and pursuant thereto the following:
(a) The Company will as expeditiously as possible:
(a) possible prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any form for which the Company then qualifies and which counsel for the Company deems appropriate form under the Securities Act, which form shall be and available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use best its commercially reasonable efforts to cause such filed Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, and remain effective for the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;period specified herein.
(b) The Company will prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldspecified herein; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify The Company will, prior to filing such Registration Statement or any amendment or supplement thereto, furnish to the selling holders of Registrable Securities Registering Security Holder and the each applicable managing underwritersApproved Underwriter, if any, promptlycopies thereof, and thereafter furnish to the Registering Security Holder and each such Approved Underwriter, if any, such number of copies of such Registration Statement, amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein) and the Prospectus included in such Registration Statement (including each preliminary Prospectus) as the Registering Security Holder or each such Approved Underwriter may reasonably request in order to facilitate the sale of the Registrable Securities.
(d) After the filing of the Registration Statement, the Company will promptly notify the Registering Security Holder of any stop order issued suspending the effectiveness of the Registration Statement or, to the Company’s knowledge, threatened to be issued by the SEC and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered.
(e) The Company will endeavor to qualify the Registrable Securities for offer and sale under such other securities or blue sky Laws of such jurisdictions in the United States as the Registering Security Holder or managing Approved Underwriter reasonably requests; provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5.4(e), (ii) subject itself to taxation in any such jurisdiction, or (iii) consent to general service of process in any such jurisdiction.
(f) The Company will as promptly as is practicable notify the Registering Security Holder at any time (and if requested by any such Person) Person confirm such advice notice in writing), (1i) when a Prospectus relating to the sale of the Registrable Securities is required by Law to be delivered in connection with sales by an Approved Underwriter or dealer, (ii) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become been declared or becomes effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3iii) of the issuance by the Commission occurrence of any stop order suspending event requiring the effectiveness preparation of a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the Registration Statement circumstances under which they were made, not misleading and promptly make available to the Registering Security Holder and to the Approved Underwriters any such supplement or the initiation of any proceedings for that purposeamendment, (4iv) if at any time the representations and warranties of the Company contained in any agreement contemplated by paragraph Section 5.4(h) hereof (oincluding any underwriting agreement) below cease to be true and correct, (5v) of any request by the SEC or any other Governmental Authority for amendments or supplements to a Registration Statement or related Prospectus or for additional information, (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6vii) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or Company’s determination that a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of to a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not would 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Companyappropriate. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Registering Security Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening occurrence of any event of the kind described in Section 6(k) hereofthe preceding sentence, the Registering Security Holder will, if directed by the Company in such holder will notice, forthwith discontinue disposition the offer and sale of Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such holder's receipt by the Registering Security Holder and the Approved Underwriters of the copies of the such supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder the Registering Security Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's the Registering Security Holder’s possession, of the most recent Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any gives such notice, the time periods regarding Company will extend the maintenance of period during which such Registration Statement shall will be extended deemed effective as contemplated by Section 5.4(a) by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by the Company will make available to the Registering Security Holder such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(kProspectus.
(g) hereof The Company will use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Advicelifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment.
(h) The Company will enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the sale of such Registrable Securities.
(i) The Company will, upon the reasonable request of the Registering Security Holder and the managing Approved Underwriter, use its reasonable best efforts to cause to be furnished to the Registering Security Holder and to each Approved Underwriter a signed counterpart, addressed to the Registering Security Holder or such Approved Underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters (and updates thereof) 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 Registering Security Holder or the managing Approved Underwriter may reasonably request.
(j) The Company will make generally available to its Security Holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and the rules and regulations of the SEC thereunder applicable thereto.
(k) The Company will use commercially reasonable efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar Securities issued by the Company are then listed or, if not so listed, on a national securities exchange or quoted on any national quotation system.
(l) Each Security Holder who is an officer, director or employee of the Company will use reasonable best efforts to take all actions, including making himself or herself available to participate and, if requested by the Board (or its designee), participating in any roadshow or other investor presentation, necessary to expedite or facilitate the sale of such Registrable Securities.
Appears in 2 contracts
Samples: Security Holders Agreement, Security Holders Agreement (Skullcandy, Inc.)
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to Section 3 hereofthe provisions of this Agreement, the Company will shall use its best commercially reasonable efforts to effect such registration to permit the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously soon as possiblereasonably practicable and as applicable:
(a) subject to Section 2, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become be declared effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities subject thereto for a period ending on the earlier of (i) 6 months after the effective date of such Registration Statement during and (ii) the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of date on which all the Registrable Securities covered thereby not being able subject thereto have been sold pursuant to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableRegistration Statement;
(c) notify the selling holders of Registrable Securities and the managing underwriterswithin a reasonable time before filing such Registration Statement, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements thereto with the Commission, furnish to the Registration Statement or the Prospectus or for additional information, (3) of the issuance one counsel selected by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should included in such Registration Statement, Prospectus or amendments or supplements thereto copies of such documents proposed to be included therein relating filed, which documents shall be subject to the plan review, comment and approval of distribution with respect to such counsel;
(d) notify each selling holder of Registrable Securities, includingpromptly after the Company receives notice thereof, without limitation, information with respect to of the number of Registrable Securities being sold to time when such underwriters, the purchase price being paid therefor by such underwriters and with respect Registration Statement has been declared effective or a supplement 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 Prospectus forming a part of such Prospectus supplement or post-effective amendment as soon as notified of Registration Statement has been filed with the matters to be incorporated in such Prospectus supplement or post-effective amendmentCommission;
(fe) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy such number of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus included in such Registration Statement (including each preliminary prospectusProspectus) and any amendment or supplement thereto (in each case including all exhibits and documents incorporated by reference therein) and such other documents as such Persons seller may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(hf) prior use its commercially reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or “blue sky sky” laws of such jurisdictions as any seller or underwriter selling holder reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch holders; provided provided, that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified business, subject itself to general taxation or to take any action which would subject it consent to general service of process in any such jurisdiction where it is would not then otherwise be required to do so subjectbut for this Section 5(f);
(ig) cooperate with the notify each 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition holder of such Registrable Securities;
(k) upon , at any time when a Prospectus relating thereto is required to be delivered under the occurrence Securities Act, of the happening of any event contemplated by paragraph (c)(6) abovethat would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, the Company shall prepare a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the such Prospectus will shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(oh) make available for inspection by a representative any selling holder of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by any such holder or underwriter (collectively, the sellers or underwriter“Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant Inspector in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderRegistration Statement;
(pi) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed;
(k) in connection with an underwritten offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, making appropriate officers of the Company available to participate in “road show” and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Securities));
(l) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, holders an earnings statements satisfying statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act, Act and Rule 158 under the Securities Act or any successor rule thereto) no later than 45 thirty (30) days after the end of any the 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month day of the Company's ’s first full fiscal quarter commencing after the effective date of the such Registration Statement, which statements earnings statement shall cover said 12-month periodsperiod, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) furnish to each selling holder of Registrable Securities and each underwriter, if any, with (i) a written legal opinion of the Company’s outside counsel, dated the closing date of the offering, in form and substance as is customarily given in opinions of registrants’ counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of any post-effective amendment to the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort” letter signed by the Company’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(n) without limiting Section 5(f), use its commercially reasonable efforts to cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Securities to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof;
(o) notify the holders of Registrable Securities promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(p) advise the holders of Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(q) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a Controlling Person of the Company, to participate in the preparation of such Registration Statement and to require the insertion therein of language, furnished to the Company in writing, which in the reasonable judgment of such holder and its counsel should be included;
(r) cooperate with the holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of The Depository Trust Company (“DTC”);
(s) not later than the effective date of such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with DTC; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of DTC;
(t) take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to the Company, the Company will take all commercially reasonable action to make any such prohibition inapplicable; and
(qu) promptly prior otherwise use its commercially reasonable efforts to take all other steps necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 2 contracts
Samples: Registration Rights Agreement (Quintana Energy Services Inc.), Registration Rights Agreement
Registration Procedures. In connection At such time as the Company is obligated to file a Registration Statement with the Company's registration obligations Commission pursuant to Section 3 hereof2, the Company will use its reasonable best efforts to effect such the registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution disposition thereof and shall include all financial statements required by the SEC to be filed therewithand, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements pursuant thereto, the Company will furnish shall have the following obligations:
a. The Company shall keep each Registration Statement effective pursuant to Rule 415 at all times from its effective time until the holders earlier of (i) the date as of which the Common Stock covered by such Registration Statement cease to be Registrable Securities or (ii) the date on which each Purchaser shall have sold all of the Registrable Securities covered by such Registration Statement (the “Registration Period”). The Company shall ensure that each Registration Statement (including any amendments or supplements thereto and the underwriters, if any, copies Prospectuses contained therein) shall not contain any untrue statement of all such documents proposed a material fact or omit to state a material fact required to be filedstated therein, which documents will be subject or necessary to make the reasonable review statements therein (in the case of such holders and underwritersProspectuses, and in the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority light of the Registrable Securities covered by such Registration Statement or the underwriters, if any, circumstances in which they were made) not misleading.
b. The Company shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the a Registration Statement as may be necessary to keep and the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by Prospectus used in connection with such Registration Statement have been sold; cause the Statement, which Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented is to be filed pursuant to Rule 424 promulgated under the Securities Act; and , as may be necessary to keep such Registration Statement effective at all times during the Registration Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities of the Company covered by such Registration Statement during the applicable period until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-Q, Form 10-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the Commission on the same day on which the Exchange Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
c. The Purchasers shall have the right to select one legal counsel to review and oversee any registration pursuant to this Agreement (“Legal Counsel”), as designated by the Required Holders. The Company and Legal Counsel shall reasonably cooperate with each other in performing the Company’s obligations under this Agreement. The Company shall (A) permit Legal Counsel to review and comment upon (i) a Registration Statement at least five (5) Business Days prior to its filing with the Commission and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, and Reports on Form 10-Q and any similar or successor reports) within a reasonable number of days prior to their filing with the Commission, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto without the prior approval of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall furnish to Legal Counsel, without charge, (i) copies of any correspondence from the Commission or the staff of the Commission to the Company or its representatives relating to any Registration Statement, (ii) promptly after the same is prepared and filed with the Commission, one copy of any Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by the Purchasers, and all exhibits and (iii) upon the effectiveness of any Registration Statement, one copy of the Prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel in performing the Company’s obligations pursuant to this Section 3.
d. The Company shall furnish to the Purchasers, without charge, (i) promptly after the same is prepared and filed with the Commission, at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by the Purchasers, all exhibits and each preliminary Prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the Prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as the Purchasers may reasonably request) and (iii) such other documents, including copies of any preliminary or final Prospectus, as the Purchasers may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by the Purchasers.
e. The Company shall (i) register and qualify, unless an exemption from registration and qualification applies, the resale by Purchasers of the Registrable Securities covered by a Registration Statement under such other securities or “blue sky” laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be deemed required in connection therewith or as a condition thereto to have used its best efforts (x) qualify to keep a Registration Statement effective during the applicable period if do business in any jurisdiction where it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able otherwise be required to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and qualify but for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of this Section 6(k3(e), if applicable;
(cy) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by subject itself to general taxation in any such Personjurisdiction, or (z) confirm file a general consent to service of process in any such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations jurisdiction. The Company shall promptly notify Legal Counsel and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) Purchasers of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.
f. The Company shall notify Legal Counsel and Purchasers in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission 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 (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 3(l), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (10) copies of such supplement or amendment to Legal Counsel and Purchasers (or such other number of copies as Legal Counsel or Purchasers may reasonably request). The Company shall also promptly notify Legal Counsel and Purchasers in writing (i) when a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel and Purchasers by facsimile on the same day of such effectiveness and by overnight mail), (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related Prospectus or related information, and (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
g. The Company shall use commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement, or the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify Legal Counsel and Purchasers of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threatening threat of any proceeding for such purpose purpose.
h. The Company shall hold in confidence and not make any disclosure of information concerning the Purchasers provided to the Company unless (6i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the happening disclosure of such information is necessary to avoid or correct a misstatement or omission in any event which makes any statement made in the Registration Statement, (iii) the Prospectus release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any document incorporated therein other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning a Purchaser is sought in or by reference untrue a court or which requires governmental body of competent jurisdiction or through other means, give prompt written notice to the making of any changes in Purchaser and allow such Purchaser, at the Registration StatementPurchaser’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
i. If requested by a Purchaser, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
Company shall (di) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly as soon as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should Purchaser reasonably requests to be included therein relating to the plan sale and distribution of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered or sold, 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 (ii) as soon as practicable make all required filings of such Prospectus supplement or post-effective amendment as soon as after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by a Purchaser holding any Registrable Securities.
(f) furnish j. Notwithstanding anything to each selling holder of Registrable Securities and each managing underwriter, without chargethe contrary herein, at least one signed copy any time after the Effective Date, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder Board of Registrable Securities and the underwriters, if any, without charge, as many copies Directors of the Prospectus (including each preliminary prospectus) Company and any amendment or supplement thereto as such Persons may reasonably request; its counsel, in the best interest of the Company consents and, in the opinion of counsel to the use Company, otherwise required (a “Grace Period”); provided, that the Company shall promptly (i) notify the Purchasers in writing of the Prospectus or any amendment or supplement thereto by each existence of the selling holders of Registrable Securities and the underwritersmaterial, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
non-public information giving rise to a Grace Period (h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that in each notice the Company will not disclose the content of such material, non-public information to the Purchasers) and the date on which the Grace Period will begin, and (ii) notify the Purchasers in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed sixty (60) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of one hundred twenty (120) days and the first day of any Grace Period must be required at least two (2) trading days after the last day of any prior Grace Period. For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Purchasers receive the notice referred 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 in any such jurisdiction where it is not then so subject;
clause (i) cooperate with and shall end on and include the selling holders later of Registrable Securities the date the Purchasers receive the notice referred to in clause (ii) and the managing underwriters, if any, date referred 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 notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding anything to the contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of a Purchaser in such names as the managing underwriters may request at least two business days prior to connection with any sale of Registrable Securities with respect to which such Purchaser has entered into a contract for sale, and delivered a copy of the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by Prospectus included as part of the applicable Registration Statement to be registered with or approved by (unless an exemption from such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwritersprospectus delivery requirements exists), if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's Purchaser’s receipt of the copies notice of a Grace Period and for which the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and Purchaser has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicenot yet settled.
Appears in 2 contracts
Samples: Investor Rights Agreement (Giga Tronics Inc), Securities Purchase Agreement (Giga Tronics Inc)
Registration Procedures. In connection with If and whenever the Company's Company is required to effect the registration obligations of any Registrable Securities under the Securities Act pursuant to Section 3 hereofthis Agreement, the Company will shall use its best efforts to effect such registration to permit and facilitate the registration, offering and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as is practicable, and pursuant thereto the Company will shall as expeditiously as possible:
(a) prepare and (within 30 days after the end of the 30-day period within which requests for registration may be given to the Company pursuant hereto) file with the SEC, as soon as practicable, SEC a Registration Statement or with respect to such Registrable Securities, make all required filings with FINRA and thereafter (if the Registration Statements on any appropriate form under the Securities Act, which form Statement is not automatically effective upon filing) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; , provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by Holders’ Counsel for such Registration Statement and the underwriters, if any, registration copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders counsel at the Company’s expense, provided further that Holders’ Counsel for such registration shall forward such documents to the Holders and underwritersHedge Fund Parties participating in such registration, give the Holders (and the Company will not file any Registration Statement or amendment Hedge Fund Parties to the extent named therein and only with respect thereto or any Prospectus or any supplement thereto and with respect to which the holders amount of a majority of the Registrable Securities covered proposed to be sold by them) an opportunity to comment on such Registration Statement or documents and keep such Holders and Hedge Fund Parties reasonably informed as to the underwriters, if any, shall reasonably objectregistration process;
(b) (i) prepare and file with the SEC such amendments and post-effective amendments supplements to the any Registration Statement as may be necessary to keep the such Registration Statement effective for a period of either (A) not less than 6 months or, if such Registration Statement relates to an Underwritten Offering, such longer period as in the applicable periodopinion of counsel for the managing underwriter(s) a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer, or two years in the case of Shelf Registration Statements (or such shorter period which will terminate ending on the date that the securities covered by such Shelf Registration Statement cease to constitute Registrable Securities) or (B) such shorter period when all Registrable Securities of the securities covered by such Registration Statement have been sold; cause disposed of in accordance with the Prospectus to be supplemented intended methods of disposition by the seller(s) thereof set forth in such Registration Statement (but in any event not before the expiration of any longer period required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ) and (ii) to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during until such time as all of such securities have been disposed of in accordance with the applicable period intended methods of disposition by the seller(s) thereof as set forth in such Registration Statement;
(c) furnish to each seller of Registrable Securities such number of copies, without charge, of any Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such other documents as such seller may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify any Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things that may be necessary or reasonably advisable to enable such seller to consummate the disposition of the seller’s Registrable Securities in such jurisdictions (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction);
(e) use its best efforts to cause all Registrable Securities covered by any Registration Statement to be registered with or approved by such other governmental agencies, authorities or self-regulatory bodies as may be necessary or reasonably advisable in light of the business and operations of the Company to enable the seller(s) thereof to consummate the disposition of such Registrable Securities in accordance with the intended method or methods of distribution by disposition thereof;
(f) promptly notify each seller of such Registrable Securities and Holders’ Counsel, at any time when a prospectus relating thereto is required to be delivered under the sellers thereof set forth Securities Act, upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made and, as promptly as practicable, prepare and furnish to such Registration Statement seller(s) a reasonable number of copies of a supplement or supplement amendment to such prospectus so that, as thereafter delivered to the Prospectus; purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state any fact necessary to make the Company shall statements therein not be deemed to have used its best efforts to keep a Registration Statement effective during misleading in the applicable period if it voluntarily takes any action that would result in selling holders light of the circumstances under which they were made;
(g) notify each seller of any Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, Registration Statement and Holders’ Counsel (1i) when the Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, filed and, with respect to the such Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any written comments by the SEC or of any request by the SEC for amendments or supplements to the such Registration Statement or the Prospectus to amend or to supplement such prospectus or for additional information, and (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 proceedings for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement theretopurposes;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of cause all such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed or, if requested no similar securities issued by the holders of a majority of Company are then listed on any securities exchange, use its reasonable best efforts to cause all such Registrable Securities to be listed on whichever of the New York Stock Exchange or the managing underwritersNASDAQ Stock Market, if anyas shall be selected by the Company;
(mi) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of the such Registration Statement, provide and, if required, obtain a CUSIP number for all such Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companynot later than such effective date;
(nj) enter into such customary agreements (including an underwriting agreementagreements with customary provisions in such forms as may be requested by the managing underwriter(s)) and take all such other actions in connection therewith as a majority of the Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited towithout limitation, those set forth in the Purchase Agreement; (2) obtain opinions effecting a share split or a combination of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereundershares);
(ok) make available for inspection by a representative any seller of the holders of a majority of the Registrable SecuritiesSecurities and Holders’ Counsel, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by the sellers any such seller or underwriter, all financial and other records, pertinent corporate documents and properties documents relating to the business of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationRegistration Statement and make senior management of the Company available for customary due diligence and drafting activity; provided provided, that any recordssuch Person gaining access to information or personnel pursuant to this Section 2.4(k) shall (i) reasonably cooperate with the Company to limit any resulting disruption to the Company’s business and (ii) agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such Person is notified, unless (A) the release of such information is requested or required (by deposition, interrogatory, requests for information or documents that are designated by a governmental entity, subpoena or similar process), (B) such information is or becomes publicly known without a breach of this agreement, (C) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company in writing as confidential shall be kept confidential or (D) such information is independently developed by such Persons unless disclosure of such records, information or documents is required by court or administrative orderPerson;
(pl) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering the provisions period of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, least twelve months beginning with the first month day of the Company's ’s first fiscal full calendar quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12earnings statement will satisfy the provisions of Section 11(a) of the U.S. Securities Act and Rule 158 thereunder;
(m) in the case of an Underwritten Offering, promptly incorporate in a prospectus supplement or post-month periodseffective amendment such information as the managing underwriter(s) or any seller of Registrable Securities reasonably request to be included therein, the purchase price being paid therefor by the underwriters and any other terms of the Underwritten Offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(n) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use every reasonable effort to promptly obtain the withdrawal of such order;
(o) make senior management of the Company available to assist to the extent requested by the managing underwriter(s) of any Underwritten Offering to be made pursuant to such registration in the marketing of the Registrable Securities to be sold in the Underwritten Offering, including the participation of such members of the Company’s senior management in “road show” presentations and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in the Underwritten Offering, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary registered offering of its Common Shares;
(p) obtain all consents of independent public accountants required to be included in the Registration Statement and, in connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the underwriters and to the seller(s) of Registrable Securities, dated the effective date of the Registration Statement (and, in the case of each Underwritten Offering, dated the date of each closing under the underwriting agreement for such offering), signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters as the underwriters or the Holders of a majority of the Registrable Securities being sold in such offering reasonably request;
(q) provide all legal opinions from the Company’s outside counsel required to be included in the Registration Statement, and, in connection with each closing of a sale of Registrable Securities, provide legal opinions from the Company’s outside legal counsel, addressed to the underwriters and the Holders of the Registrable Securities being sold (and, if any Hedge Fund Parties are selling Registrable Securities in the offering, to such Hedge Fund Parties), dated the effective date of each Registration Statement and each amendment and supplement thereto (and, if such registration includes an Underwritten Offering, dated the date of the closing under the underwriting agreement), with respect to the Registration Statement, each amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature; and
(qr) promptly prior use its best efforts to take or cause to be taken all other actions, and do and cause to be done all other things necessary or reasonably advisable in the opinion of Holders’ Counsel to effect the registration, marketing and sale of such Registrable Securities. The Company agrees not to file or make any amendment to any Registration Statement with respect to any Registrable Securities, or any amendment of or supplement to the filing prospectus used in connection therewith, that refers to any Holder or Hedge Fund Party covered thereby by name, or otherwise identifies such Holder or Hedge Fund Party as the holder of any document which is securities of the Company, without the consent of such Holder or Hedge Fund Party, as applicable, such consent not to be incorporated by reference into the Registration Statement unreasonably withheld or the Prospectus (after initial filing of the Registration Statement)delayed, provide copies of such document to counsel to the selling holders of Registrable Securities unless and to the managing underwriters, if any, make the Company's representatives available for discussion of extent such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestdisclosure is required by law. The Company may require each seller of Hedge Fund holding, and Holder of, Registrable Securities as to which any registration is being effected to furnish to the Company with such information regarding such Holder or Hedge Fund Party, as applicable, and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Registration Rights Agreement (NXP Semiconductors N.V.), Registration Rights Agreement (NXP Semiconductors N.V.)
Registration Procedures. In connection Whenever the Shareholder has made a Request in accordance with the Company's registration obligations Section 5.1 that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts to effect such registration to permit shall:
(a) as expeditiously as reasonably practicable after the sale receipt by the Company of such a Request, prepare and file with the SEC a Required Registration Statement or Required Shelf Registration Statement, as the case may be, providing for the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof specified in such Request, and shall include all financial statements required use reasonable best efforts to have such Required Registration Statement or Required Shelf Registration Statement, as the case may be, declared effective by the SEC as soon as practicable thereafter and subject to be filed therewiththe Blackout Periods set forth in Section 5.2, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause keep such Registration Statement to become effective; provided that before filing a Required Registration Statement or Prospectus Required Shelf Registration Statement, as the case may be, continuously effective (i) in the case of a Demand Registration, for a period of at least ninety (90) calendar days (or, in the case of an underwritten offering, such period as the underwriters may reasonably require) following the date on which such Required Registration Statement is declared effective (or any amendments or supplements thereto, the Company will furnish to the holders such shorter period which shall terminate when all of the Registrable Securities covered by such Required Registration Statement and have been sold pursuant thereto) or (ii) in the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders case of a majority of the Shelf Registration, until such time as all Registrable Securities covered by such Required Shelf Registration Statement have been sold pursuant thereto, including, in either case, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or Required Shelf Registration Statement or the underwritersrelated prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement or Required Shelf Registration Statement, if anyrequired by the rules, shall reasonably objectregulations or instructions applicable to the registration form used by the Company for such Required Registration Statement or Required Shelf Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky Laws, or any rules and regulations thereunder;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during for the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in (a) above;
(c) furnish to the Shareholder such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as the Shareholder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Shareholder;
(d) use its reasonable best efforts to register or supplement qualify such Registrable Securities under such other securities or blue sky Laws of such jurisdictions in the United States as the Shareholder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the ProspectusShareholder to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Shareholder (it being understood that the Company shall be under no obligation to register or qualify the Ordinary Shares or ADSs under Israeli or other Laws of jurisdictions outside the United States); provided that the Company shall not be deemed required to have used its (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify, (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction where it is not so subject;
(e) in the event of any underwritten public offering, enter into an underwriting agreement or similar agreement, in usual and customary form, with the managing underwriters of such offering and use reasonable best efforts to keep take such other actions as the managing underwriters reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including causing its senior officers to participate in “road shows” and other information meetings organized by the managing underwriters;
(f) notify the Shareholder, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement effective during contains an untrue statement of a material fact or omits any fact necessary to make the applicable period if it voluntarily takes any action that would result statements therein, not misleading, and in selling such case, subject to Section 5.2, the Company shall promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the holders of Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the Registrable Securities covered thereby statements therein, not being able misleading;
(g) use its reasonable best efforts to sell cause all such Registrable Securities during that period unless such action is required under applicable law, provided that which are registered to be listed on each securities exchange on which the foregoing shall not apply ADSs representing the Ordinary Shares are then listed and to actions taken by be eligible and remain eligible for registration of the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableADSs pursuant to Form F-6;
(ch) notify cooperate with the selling holders of Registrable Securities Shareholder and the managing Depositary to facilitate the timely delivery of ADSs (in book entry or certificated form) to be delivered to a transferee pursuant to a Registration Statement, which ADSs shall be free of all restrictive legends;
(i) enter into such customary agreements and use reasonable best efforts to take all such other actions as the Shareholder or the underwriters, if any, promptlyreasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(j) make available for inspection by the Shareholder, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Shareholder or any underwriter, financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and (if cause the Company’s officers, directors, employees and independent accountants to supply all other information reasonably requested by the Shareholder or any such Personunderwriter, attorney, accountant or agent in connection with such Registration Statement;
(k) confirm if such advice sale is pursuant to an underwritten offering, use reasonable best efforts to obtain “comfort” letters dated the pricing date of the offering of the Registrable Securities and the date of the closing under the underwriting agreement from the Company’s independent public accountants in writingcustomary form and covering such matters of the type customarily covered by “comfort” letters in connection with underwritten offerings as the managing underwriter reasonably requests;
(l) use reasonable best efforts to furnish, (1) when at the Prospectus request of the Shareholder on the date such securities are delivered to the underwriters for sale pursuant to such registration or any Prospectus supplement or post-effective amendment has been filedare otherwise sold pursuant thereto, andan opinion and a “10b-5” letter, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters covering such legal and other matters with respect to the registration in respect of which such opinion is being given and such letter is being delivered as the underwriters may reasonably request and are customarily included in such opinions and letters;
(m) subject to Section 5.2, use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement or any post-registering such Registrable Securities;
(n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable after the effective amendmentdate of the Registration Statement, when an earnings statement covering the same has become effectiveperiod of at least 12 months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, (2which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(o) reasonably cooperate with the Shareholder and each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(p) notify in writing the Shareholder and the underwriter, if any, of the following events as promptly as reasonably practicable:
(i) the effectiveness of any such Registration Statement;
(ii) any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, information and when same has been filed and become effective;
(3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any Person for that purpose, ; and
(4iv) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws Laws of any jurisdiction or the initiation or threat of any proceeding for such purpose;
(q) to the extent reasonably required in writing by the lead managing underwriters with respect to an underwritten offering relating to the registration of Equity Securities having an aggregate value of at least $200,000,000, agree, and cause the directors or officers of the Company to agree, to enter into customary agreements restricting the sale or distribution of Equity Securities during the period commencing on the date of the request (which shall be no earlier than fourteen (14) calendar days prior to the expected “pricing” of such jurisdictions underwritten offering) and continuing for not more than ninety (90) calendar days after the date of the “final” prospectus (or “final” prospectus supplement if the underwritten offering is made pursuant to a Shelf Registration Statement), pursuant to which such underwritten offering shall be made, plus an extension period, as any seller may be proposed by the lead managing underwriters to address FINRA regulations regarding the publishing of research, or underwriter reasonably requests in writing and do any and such lesser period as is required by the lead managing underwriters; and
(r) use reasonable best efforts to take all other acts or things steps reasonably necessary or advisable to enable effect the disposition in such jurisdictions registration of the Registrable Securities covered contemplated hereby. If any such registration or comparable statement refers to the Shareholder by name or otherwise as the holder of any securities of the Company and if the Shareholder is or would be reasonably expected to be deemed to be a controlling person of the Company, the Shareholder shall have the right to require (i) the insertion therein of language, in form and substance satisfactory to the Shareholder and presented to the Company in writing, to the effect that the holding by the Registration StatementShareholder of such securities is not to be construed as a recommendation by the Shareholder of the investment quality of the Company’s securities covered thereby and that such holding does not imply that the Shareholder shall assist in meeting any future financial requirements of the Company or (ii) in the event that such reference to the Shareholder by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of the reference to the Shareholder; provided that with respect to this clause (ii) the Shareholder must furnish to the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions opinion of counsel to the Company such effect, which opinion and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in . In connection with primary underwritten offerings; (4) if an underwriting agreement any Registration Statement in which the Shareholder is entered intoparticipating, the same Shareholder shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect furnish to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities and affidavits as the Company reasonably may from time to time reasonably request specifically for use in writingconnection with any such Registration Statement or prospectus. Each holder Upon notice by the Company to the Shareholder of any Blackout Period, the Shareholder shall keep the fact of any such notice strictly confidential, and during any Blackout Period, discontinue its offer and disposition of Registrable Securities pursuant to the applicable Registration Statement and the prospectus relating thereto for the duration of the Blackout Period set forth in such notice (or until such Blackout Period shall be earlier terminated in writing by the Company) and, if so directed by the Company, shall deliver to the Company any copies then in its possession of any such prospectus or prospectus supplement. The Shareholder agrees by acquisition of such Registrable Securities that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(kclauses (f), (o)(ii), (o)(iii) hereofor (o)(iv) above, such holder will it shall forthwith discontinue its offer and disposition of Registrable Securities pursuant to the applicable Registration Statement and the prospectus relating thereto until such holder's its receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 6(k) hereofclause (o)(ii), or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus applicable prospectus may be resumed, and has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event prospectus; provided that the Company shall give any such notice, use its reasonable best efforts to supplement or amend the applicable Registration Statement and prospectus as promptly as practicable and shall extend the time periods regarding under clause (a) above with respect to the maintenance length of time that effectiveness of a Registration Statement must be maintained by the amount of time that the Shareholder is required to discontinue disposition of such Registrable Securities. The Company shall use its reasonable best efforts to maintain the effectiveness of a Registration Statement shall be extended by the on Form F-6 which registers a number of days during ADSs that is sufficient to allow the period from Shareholder to exercise its rights under, and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of sell its Registrable Securities covered by such Registration Statement shall have received in the copies of United States in the supplemented or amended prospectus manner contemplated by Section 6(k) hereof or the Adviceby, this Agreement.
Appears in 2 contracts
Samples: Shareholder Agreements (Teva Pharmaceutical Industries LTD), Shareholder Agreement (Allergan PLC)
Registration Procedures. In connection with If and whenever the Company's Company is required to use commercially reasonable efforts to effect or cause the registration obligations pursuant to Section 3 hereofof any Registrable Securities under the Securities Act as provided in this Agreement, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofwill, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements with respect to such Registrable Securities on any appropriate form under for which the Securities ActCompany then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its best efforts to cause such Registration Statement to become and remain effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC amendments and post- effective amendments to such Registration Statement and such amendments and post-effective amendments supplements to the Registration Statement Prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations thereunder for shelf registration or otherwise necessary to keep the such Registration Statement effective for up to 90 days (except to the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; extent otherwise provided in Section 4(b) with respect to a Designated Shelf Registration) and cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; , and to otherwise comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during until the applicable period earlier of (x) such 90th day (except to the extent otherwise provided in accordance Section 4(b) with the intended method or methods of distribution respect to a Designated Shelf Registration) and (y) such time as all Registrable Securities covered by the sellers thereof set forth in such Registration Statement or supplement have ceased to the Prospectus; be Registrable Securities (it being understood that the Company shall not be deemed at its option may determine to have used its best efforts maintain such effectiveness for a longer period, whether pursuant to keep a Shelf Registration or otherwise); PROVIDED that a reasonable time before filing a Registration Statement effective during or Prospectus, or any amendments or supplements thereto (other than reports required to be filed by it under the applicable period if it voluntarily takes any action that would result in selling holders of Exchange Act and the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken rules and regulations adopted by the Company in good faith and for valid business reasonsSEC thereunder), including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with will furnish to the requirements Holders, the managing underwriter and their respective counsel for review and comment, copies of Section 6(k), if applicableall documents proposed to be filed and will not file any such documents (other than as aforesaid) to which any of them reasonably object prior to the filing thereof;
(c) furnish to each Holder of such Registrable Securities such number of copies of such Registration Statement and of each amendment and post-effective amendment thereto (in each case including all exhibits), any Prospectus or Prospectus supplement and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder (the Company hereby consenting to the use (subject to the limitations set forth in the last paragraph of this Section 7) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(d) use its best efforts to register or qualify such Registrable Securities covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions as each Holder shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder, except that the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 7(d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction, or to consent to general service of process in any such jurisdiction;
(e) notify each Holder of any such Registrable Securities covered by such Registration Statement, at any time when a Prospectus relating thereto is required to be delivered under the selling holders Securities Act within the appropriate period mentioned in Section 7(b), of the Company's becoming aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such Holder, prepare and furnish to such Holder a reasonable number of copies of an amendment or supplement to such Registration Statement or related Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(f) notify each Holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested covered by such Registration Statement at any such Person) confirm such advice in writing, time,
(1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, ;
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, ;
(3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation or any overt threats of any proceedings for such purposes;
(4) of the receipt by the Company of any written notification of the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or any overt threats of any proceeding for that purpose, ; and
(45) if at any time the representations and warranties of the Company contemplated by paragraph (oparagraph(i)(1) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver otherwise use its best efforts to each selling holder of Registrable Securities comply with all applicable rules and the underwriters, if any, without charge, as many copies regulations of the Prospectus (including each preliminary prospectusSEC, and make available to its security holders an earnings statement which shall satisfy the provisions of Section 11(a) and any amendment or supplement thereto as such Persons may reasonably request; of the Securities Act, provided that the Company consents shall be deemed to have complied with this paragraph if it has complied with Rule 158 under the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement theretoAct;
(h) prior use commercially reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and cause all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 listed on any securities exchange on which the TWX Common Stock is then listed, if such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities are not already so listed and if such listing is then permitted under the rules of such exchange, and to the underwriters;
(j) use its best efforts to cause the provide a transfer agent and registrar for such Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not no later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(ni) enter into such agreements (including an underwriting agreementagreements) and take all such other appropriate and all commercially reasonable actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration:
(1) make such representations and warranties to the holders Holders of such Registrable Securities and the underwriters, if any, in form, scope and substance and scope as are customarily made by issuers to underwriters in primary firm commitment underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; 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 managing underwriters, if any, and the holders Holders of a majority in number of the Registrable Securities being sold) addressed to each selling holder such Holders and the underwriters, if any, underwriters covering the matters customarily covered in opinions requested in firm commitment underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders Holders of a majority in number of the Registrable Securities being sold and the managing underwritersunderwriter, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Restructuring Agreement (Time Warner Inc), Registration Rights Agreement (Time Warner Inc)
Registration Procedures. In connection with the Company's registration obligations Whenever an Investor requests that any Registrable Securities be offered or registered pursuant to Section 3 hereof2.01 or 2.03, subject to the provisions of such Sections, the Company will shall use its reasonable best efforts to effect such registration to Registration and permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will disposition thereof as expeditiously as possiblereasonably practical, and, in connection with any such request:
(a) The Company shall as expeditiously as reasonably practical prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate form under the Securities Act, and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use all reasonable best efforts to cause such filed Registration Statement to become effective; provided that before and remain effective for a period of not less than 180 days (or such shorter period in which all of the Registrable Securities of the Investors and Management Investors included in such Registration Statement shall have actually been sold thereunder). For the avoidance of doubt, the Company shall be permitted to effect the Registration of any Registrable Securities by filing a post-effective amendment or prospectus supplement to any then-effective Registration Statement of the Company, including the Existing Shelf Registration Statement as contemplated by Section 2.01(a) or the Registration Statement to be filed as contemplated by Section 2.01(b).
(b) Prior to filing a Registration Statement or Prospectus prospectus or any amendments amendment or supplements theretosupplement thereto relating to a Registration under Section 2.01 or a Primary Offering under Section 2.03 (other than any report filed pursuant to the Exchange Act that is incorporated by reference therein), the Company will shall, if practical, furnish to the holders each participating Investor, each participating Management Investor and each underwriter, if any, of the Registrable Securities covered by such Registration Statement copies of such Registration Statement as proposed to be filed, and thereafter the Company shall furnish to such Investor(s) and underwriters, if any, such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424, Rule 430A, Rule 430B or amendment thereto Rule 430C under the Securities Act and such other documents as such Investor(s) or any Prospectus or any supplement thereto underwriters may reasonably request in order to which facilitate the holders of a majority disposition of the Registrable Securities covered owned by such Registration Statement or the underwriters, if any, shall reasonably object;Investor(s) and Management Investor(s).
(bc) prepare and file with After the SEC such amendments and post-effective amendments to filing of the Registration Statement as may be necessary to keep Statement, the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; Company shall (i) cause the Prospectus related prospectus to be supplemented by any required Prospectus supplementprospectus supplement (including by virtue of paragraph (d) below), and and, as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and , except when a Postponement Event is in effect, (ii) comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers Investors thereof set forth in such Registration Statement or prospectus supplement and (iii) promptly notify each Investor holding Registrable Securities covered by such Registration Statement of any stop order issued or threatened by the SEC or any state securities commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered (and promptly notify each such Investor of the withdrawal or removal of such stop order).
(d) The Company shall promptly notify each Investor and Management Investor holding such Registrable Securities covered by such Registration Statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the Prospectus; purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and, except when a Postponement Event is in effect, promptly prepare and make available to each such Investor and Management Investor and file with the SEC any such supplement or amendment within the timeframe required by the SEC.
(e) In the case of any Underwritten Offering hereunder, the Company shall not select the underwriter or underwriters in connection therewith (who shall be deemed reasonably acceptable to have used its best efforts to keep holders of a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders majority of the Registrable Securities covered thereby not being able participating in the Underwritten Offering) and determine their respective roles within the syndicate, and shall enter into customary agreements (including an underwriting agreement in customary form) and take all such other actions as are reasonably required in order to sell expedite or facilitate the disposition of such Registrable Securities during that period unless in any such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasonsUnderwritten Offering, including without limitation if necessary the acquisition or divestiture engagement of assets, so long as the Company promptly thereafter complies a “qualified independent underwriter” in connection with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale underwriting arrangements with FINRA. Notwithstanding the foregoing, in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration StatementBlock Trade, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order as opposed to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an “marketed underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and ,” the holders of a majority of the Registrable Securities being sold agree should be included participating therein relating shall select the underwriter(s) for such Block Trade from a group of up to the plan of distribution with respect five underwriters for such Block Trade that are acceptable to such Registrable Securities, including, without limitation, information with respect to holders and the number Company (each acting reasonably and promptly following its receipt of Registrable Securities being sold to such underwriters, the purchase price being paid therefor by such underwriters and with respect to any other terms notice 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;a Registration Request for a Block Trade).
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) The Company shall deliver to each selling holder of Registrable Securities participating Investor, its counsel, and the underwriters, if any, without charge, as many copies of the Prospectus prospectus or prospectuses (including each preliminary form of prospectus) and any each amendment or supplement thereto as such Persons may reasonably requestrequest from time to time in connection with the distribution of the Registrable Securities; provided that the Company may furnish or make available any such document in electronic format (other than, in the case of an Underwritten Offering, upon the request of the managing underwriters thereof for printed copies of any such prospectus or prospectuses); and the Company, hereby consents to the use of the Prospectus or any such prospectus and each amendment or supplement thereto by each of the selling holders of Registrable Securities participating Investor and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such prospectus and any such amendment or supplement thereto;.
(g) In the case of any Underwritten Offering hereunder, upon execution of confidentiality agreements in form and substance reasonably satisfactory to the Company, the Company shall make available for inspection by any Investor, any Management Investor and any underwriter participating in any disposition pursuant to a Registration Statement being filed by the Company pursuant to this Section 2.06 and any attorney, accountant or other professional advisor retained by any such Investor 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 or desirable to enable them to exercise their customary 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 that the Company determines, in good faith, to be attorney-client privileged or confidential and that it notifies the Inspectors are attorney-client privileged or confidential shall not be disclosed by the Inspectors unless with respect to the confidential Records (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or otherwise required under applicable law or otherwise in accordance with Section 4.03 of the Investor Rights Agreement. Each Investor and Management Investor agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the Registrable Securities unless and until such information is made generally available to the public. Each Investor and Management Investor further agrees that, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, it shall (to the extent legally permissible) give notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential.
(h) prior In the case of any Underwritten Offering hereunder, the Company shall use reasonable best efforts to furnish to each Registering Investor and to each underwriter a signed counterpart, addressed to such Registering Investor or underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a comfort letter or comfort letters from the Company’s independent public accountants, each in customary form and covering such matters of the kind customarily covered by opinions or comfort letters, as the case may be, as a majority of such Investors or the managing underwriter therefor reasonably requests.
(i) If requested by the managing underwriters, if any, or the holders of a majority of the then-issued and outstanding Registrable Securities being sold in connection with an Underwritten Offering, promptly include in a prospectus supplement or post-effective amendment to the applicable Registration Statement such information as the managing underwriters, if any, and such holders may reasonably request in order to permit the intended method of distribution of such securities and make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received such request; provided, however, that the Company shall not be required to take any action under this paragraph (i) that is not, in the opinion of counsel for the Company, in compliance with applicable law.
(j) The Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement or such other document covering a period of 12 months, beginning within three months after the effective date of the Registration Statement, which earnings statement satisfies the requirements of Rule 158 under the Securities Act.
(k) The Company may require each Investor and Management Investor promptly to furnish in writing to the Company such information regarding the intended method of distribution of the Registrable Securities as the Company may from time to time reasonably request and such other information regarding such Investor or Management Investor as may be legally required in connection with such Registration.
(l) The Company shall use its reasonable best efforts to list all Registrable Securities covered by such Registration Statement on any securities exchange or quotation system on which the Ordinary Shares are then listed or traded.
(m) In the case of any Underwritten Offering hereunder, the Company shall have appropriate officers of the Company (i) except in connection with a Block Trade, prepare and make presentations at any “road shows” and before analysts and (ii) otherwise use their reasonable efforts to cooperate as reasonably requested by the underwriters in the offering, marketing or selling of the Registrable Securities.
(n) Prior to any public offering of Registrable Securities, the Company shall register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel 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 sky” laws of such jurisdictions within the United States as any seller Investor or underwriter reasonably requests in writing and do to keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective pursuant to this Agreement and to take any and all other acts or things action that may be necessary or advisable to enable such Investors to consummate the disposition of such Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdiction; provided provided, however, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this Agreement or to (ii) take any action which that would subject it to taxation or general service of process in any such jurisdiction where it is would not then so subject;otherwise be subject but for this Agreement.
(io) cooperate with the selling holders of The Company shall provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement.
(p) The Company shall cooperate with, and direct the Company’s transfer agent to cooperate with, such Registering Investors and the managing underwriters, if any, to facilitate the timely settlement of any offering or sale of Registrable Securities, including the preparation and delivery of certificates (not bearing any legend) or book-entry (not bearing stop transfer instructions) representing Registrable Securities to be sold and not bearing any restrictive legends; and enable after receiving written representations from such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause Registering Investors that the Registrable Securities covered represented by the applicable Registration Statement to be registered with or approved certificates so delivered by such other governmental agencies or authorities as may Registering Investor will be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to transferred in accordance with the Registration Statement or and, in connection therewith, if reasonably required by the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;Company’s transfer agent.
(lq) cause all Registrable Securities covered by the Registration Statement Prior to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration StatementStatement relating to the Registrable Securities, provide the Company will obtain a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Registration Rights Agreement (CLARIVATE PLC), Registration Rights Agreement (CLARIVATE PLC)
Registration Procedures. In connection with If and whenever the Company's registration obligations pursuant Company is required to Section 3 hereofregister Registrable Securities in a Demand Registration,, the Company will use its best all commercially reasonable efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods plan of distribution thereof. With respect to both Demand Registrations and Piggyback Registrations (except as otherwise specifically provided), and pursuant thereto the Company will as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, SEC as soon as practicable, practicable a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best all commercially reasonable efforts to cause such Registration Statement to become effective and remain continuously effective until the date that is the earlier to occur of (i) the date six months from the date such Registration Statement was declared effective; , and (ii) the date the last of the Registrable Securities covered by such Registration Statement have been sold, provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will shall furnish to the holders Holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, draft copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders Investor and underwriters, and the Company will shall not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement Investor or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement Statement, and such supplements to the Prospectus, as may be necessary requested by any underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when until all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period are sold in accordance with the intended method or methods plan of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) promptly notify the selling holders Holders of Registrable Securities and the managing underwritersunderwriter, if any, promptly, and (if requested by any such Person) confirm such advice in writing, ,
(1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, ,
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, ,
(3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, ,
(4) if at any time the representations and warranties of the Company contemplated by clause (1) of paragraph (o) below cease to be true and correct, accurate in all material respects,
(5) 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 and purpose, and
(6) of the happening existence of any event fact which makes any statement made results in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingcontaining a Misstatement;
(d) make every all commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentpracticable time;
(e) unless the Company objects in writing on reasonable grounds, if requested by the managing underwriter or underwriters or a holder Investors holding more than 50% of the Registrable Securities then outstanding (on behalf of themselves and all permitted assignees who are Holders of Registrable Securities being sold in connection with an underwritten offeringSecurities), as promptly as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriter and the holders of a majority of the Registrable Securities being sold Investors agree should be included therein relating to the plan sale of distribution with respect to such the Registrable Securities, including, without limitation, information with respect to the number of shares 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 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;
(f) only with respect to Demand Registrations, promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement) provide copies of such document to counsel to the Investors (on behalf of themselves and all permitted assignees who are Holders of Registrable Securities) and to the managing underwriter, if any, and make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for the Investors or underwriters may reasonably request;
(g) furnish to each selling holder Holder of Registrable Securities and each the managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gh) deliver to TC Group, L.L.C. or Carlyle Investment Management, L.L.C., as appropriate (on behalf of each selling holder Holder of Registrable Securities Securities) and the underwriters, if any, without charge, as many copies of the each Prospectus (including and each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; request (the Company consents hereby consenting to the use of the each such Prospectus (or any amendment or supplement thereto preliminary prospectus) by each of the selling holders Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus (or any amendment or supplement theretopreliminary prospectus));
(hi) prior to any public offering of Registrable Securities, use all commercially reasonable efforts to register or qualify or cooperate with the selling holders Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller such Investor or underwriter reasonably requests underwriters may designate in writing and do any and all other acts or things anything else necessary or advisable to enable from a legal perspective the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall 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 in any such jurisdiction where it is not then so subject;
(ij) cooperate with the selling holders Holders of Registrable Securities and the managing underwritersunderwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold and not bearing any restrictive legends; and enable cause such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriter may request at least two three business days prior to any sale of Registrable Securities to the underwriters;
(jk) use its best all commercially reasonable efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kl) upon if the occurrence of any event contemplated by paragraph (c)(6) aboveRegistration Statement or the Prospectus contains a Misstatement, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleadingMisstatement;
(lm) use all commercially reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each any national securities exchange on which similar the Company's securities issued by the Company are then listed or authorized for quotation on Nasdaq, if requested by the holders Investors (on behalf of a majority themselves and all permitted assignees who are Holders of such Registrable Securities Securities) or the managing underwritersunderwriter, if any; provided, however, that the payment of any required listing or other fee shall always be deemed to be "commercially reasonable" for purposes of this Section 5(m);
(mn) provide a CUSIP number for all Registrable Securities not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(no) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith do anything else reasonably necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Underwritten Registration:
(1) make such representations and warranties to the holders Holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters holders and underwriters, respectively, in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; 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 managing underwritersunderwriter, if any, and the holders Investor (on behalf of a majority itself and all permitted assignees who are Holders of the Registrable Securities being soldSecurities)) addressed to each selling holder Holder and the underwritersunderwriter, if any, covering the matters customarily covered in opinions requested delivered to holders and underwriters, respectively, in underwritten offerings similar Underwritten Offerings and such other matters as may be reasonably requested by such holders and Investor or underwriters; ;
(3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders Holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters holders and underwriters, respectively, in connection with primary underwritten offerings; similar Underwritten Offerings;
(4) if an underwriting agreement is entered into, cause the same shall set forth in full the to include customary indemnification and contribution provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Sectionsuch underwriters; and and
(5) the Company shall deliver such documents and certificates as may be reasonably requested by the holders Investor (on behalf of a majority itself and all permitted assignees who are Holders of the Registrable Securities being sold Securities) and the managing underwritersunderwriter, if any, to evidence compliance with clause (k1) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderotherwise reasonably requested by the Investor (on behalf of itself and all permitted assignees who are Holders of Registrable Securities);
(op) make available for inspection by a representative representatives of the holders TC Group, L.L.C. or Carlyle Investment Management, L.L.C., as appropriate (on behalf of a majority themselves and all permitted assignees who are Holders of the Registrable Securities), any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney or accountant retained by the sellers or any such underwriter, all financial and other records, records and pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney seller or accountant underwriter in connection with such registrationthe Registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;; and
(pq) otherwise use its best all commercially reasonable efforts to comply with all applicable rules and regulations of the SECSEC relating to such Registration, and make generally available to its security holders, holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 forty-five (45) days after the end of any 12-month period (or 90 ninety (90) days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offeringan Underwritten Offering, or (2) or, if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceperiod.
Appears in 2 contracts
Samples: Registration Rights Agreement (Tc Group LLC), Registration Rights Agreement (Insight Health Services Corp)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, If and whenever the Company will is required to use its best efforts to effect such registration take action pursuant to any Federal or state law or regulation to permit the sale or other disposition of such any Registrable Securities that are then held or that may be acquired upon exercise of the Warrants in accordance with order to effect or cause the intended method or methods registration of distribution thereofany Registrable Securities under the Securities Act as provided in this Article 6, and pursuant thereto the Company will shall, as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, as soon as practicable, practicable within 90 days after the end of the period within which requests for registration may be given to the Company (but subject to the provisions for deferral contained in Section 6.2(a) hereof) a Registration Statement or Registration Statements relating to the registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC thereof, subject to be filed therewith, cooperate and assist in any filings required to be made with the NASDSection 6.1(d) hereof, and use its best efforts to cause such Registration Statement Statements to become effective; provided that before filing a Registration Statement or Prospectus or any amendments amendment or supplements thereto, including documents incorporated by reference after the initial filing of any Registration Statement, the Company will furnish to the holders Holders of the Registrable Securities covered by such Registration Statement Statements and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders Holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the a Registration Statement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter a reasonable period which will terminate when all Registrable Securities covered by such Registration Statement have been soldnot to exceed 180 days; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the such Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders Holders of Registrable Securities and the managing underwriters, if any, promptly, promptly and (if requested by any such Person) confirm such advice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, ; (2ii) of any request by the SEC for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, ; (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, ; (4iv) if at any time any of the representations and warranties of the Company contemplated by paragraph (om) below cease ceases to be true and correct, correct in all material respects; (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose purposes; and (6vi) of the happening of any event which that makes any statement of a material fact made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Statement or Prospectus so that they will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible moment;
(e) if reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringunderwriters, promptly immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders believe (on advice of a majority of the Registrable Securities being sold agree counsel) should be included therein as required by applicable law relating to the plan such sale of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwriters, the purchase price being paid therefor for the Registrable Securities by such underwriters and with respect to any other terms of the underwritten (or "best efforts 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;
(f) furnish to each selling holder Holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment theretotherein, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder Holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses (including each preliminary prospectusProspectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the such Prospectus or any amendment or supplement thereto by each of the selling holders Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions within the United States as any seller selling Holder or underwriter reasonably requests in writing writing, keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; , provided that the Company 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 the Company to general service of process in any such jurisdiction where it is not then at the time so subject;
(i) cooperate with the selling holders 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 managing underwriters may request at least two business days Business Days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6Section 6.4(c)(vi) above, prepare a post-effective amendment or supplement or posteffective amendment to the applicable Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(l) with respect to each issue or class of Registrable Securities, use its best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange or automated quotation system, if any, on which similar securities issued by the Company are then listed if requested by the holders Holders of a majority of such issue or class of Registrable Securities or the managing underwriters, if anySecurities;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an any underwriting agreement) and take all such other actions action reasonably required in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not if the registration is in connection with an underwritten registration offering (1i) make such representations and warranties to the holders of underwriters in such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (shall be in form, scope and substance) shall be substance reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, underwriters covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3iii) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4iv) if an underwriting agreement is entered into, the same shall set forth in full in any underwriting agreement entered into the indemnification provisions and procedures of Section 8 6.5 hereof with respect to all parties to be indemnified pursuant to said Section; and (5v) the Company shall deliver such documents and certificates as may be reasonably requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, underwriters to evidence compliance with clause (ki) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The ; the above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderhereunder;
(on) make available for inspection by a representative one or more representatives of the holders Holders of a majority of the Registrable SecuritiesSecurities being sold, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers such Holders or underwriter, all financial and other recordsrecord, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representativerepresentatives, underwriter, attorney or accountant in connection with such registrationsuch; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;and
(po) otherwise use its best efforts to comply with all applicable rules Federal and regulations state regulations; and take such other action as may be reasonably necessary or advisable to enable each such Holder and each such underwriter to consummate the sale or disposition in such jurisdiction or jurisdictions in which any such Holder or underwriter shall have requested that the Registrable Securities be sold. Except as otherwise provided in this Agreement, the Company shall have sole control in connection with the preparation, filing, withdrawal, amendment or supplementing of each Registration Statement, the SECselection of underwriters, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end distribution of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter preliminary prospectus included in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to and may include within the filing coverage thereof additional shares of any document which is to be incorporated by reference into Common Stock or other securities for its own account or for the Registration Statement account of one or the Prospectus (after initial filing more of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestits other security holders. The Company may require each seller Seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") otherwise be required by the Company that the use of the Prospectus may Securities Act to be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then included in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceStatement.
Appears in 2 contracts
Samples: Warrant Agreement (Zevex International Inc), Warrant Agreement (Zevex International Inc)
Registration Procedures. In connection with If and whenever the Company's Company is required to effect the registration obligations of any Registrable Securities pursuant to Section 3 hereofthis Agreement, the Company will shall use its best commercially reasonable efforts to effect such registration to permit and facilitate the registration, offering and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as is practicable and, and pursuant thereto thereto, the Company will shall as expeditiously as possiblepossible and as applicable:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Actwith respect to such Registrable Securities, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include make all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with in connection therewith and (if the NASD, and use best efforts to Registration Statement is not automatically effective upon filing) cause such Registration Statement to become effective; provided that before effective as promptly as practicable. Before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (excluding, for the avoidance of doubt, the filing of any document under the Exchange Act incorporated by reference therein), the Company will shall, at the Company’s expense, furnish to counsel to the holders of the Registrable Securities covered by Holders for such Registration Statement and the underwriters, if any, registration copies of all such documents proposed to be filed, which documents will be subject and give counsel to the Holders participating in such registration a reasonable opportunity to review of and comment on such holders documents and underwriters, and keep such Holders reasonably informed as to the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectregistration process;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for until all of the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus disposed of and use its commercially reasonable efforts to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all securities the Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof of such Registrable Securities set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterHolder participating in the registration, without charge, at least one signed copy such number of copies of the Registration Statement and any post-effective amendment thereto, including financial statements to such Registration Statement and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder such number of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus included in such Registration Statement (including each preliminary prospectusProspectus) and any amendment or supplement thereto (in each case including all exhibits thereto and all documents incorporated by reference therein) and such other documents in each case as such Persons Holder may reasonably request; , including in order to facilitate the disposition of the Registrable Securities owned by such Holder (it being understood that the Company consents to the use of the Prospectus or and any amendment or supplement thereto to the Prospectus by each of the selling holders of Registrable Securities Holders covered by the Registration Statement and the underwriter or underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment amendments or supplement theretosupplements to the Prospectus);
(hd) prior use its commercially reasonable efforts to any public offering of Registrable Securities, (i) register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or blue blue-sky laws of such jurisdictions U.S. jurisdiction(s) as any seller Holder participating in the registration or any managing underwriter reasonably requests in writing and (ii) do any and all other acts or and things that may be necessary or reasonably advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities Holder 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriterseach underwriter, if any, to consummate the disposition of such Holder’s Registrable SecuritiesSecurities in such jurisdiction(s); provided, that the Company shall not be required to qualify generally to do business, subject itself to taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for its obligations pursuant to this Section 10(d);
(ke) upon promptly notify each Holder participating in the occurrence registration and the managing underwriters of any event contemplated by paragraph Underwritten Offering:
(c)(6i) aboveeach time when the Registration Statement, prepare a any pre-effective amendment thereto, the Prospectus or any Prospectus supplement or posteffective any 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 oral or written comments by the SEC or of any request by the SEC for amendments or supplements to the Registration Statement or the related Prospectus or for any document incorporated additional information regarding such Holder;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceedings for any such purpose; and
(iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Securities for sale under the applicable securities or blue-sky laws of any jurisdiction;
(f) notify each Holder participating in such registration, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any event that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or to omit any fact necessary to make the statements made therein by reference not misleading in light of the circumstances under which they were made, and, as promptly as practicable, prepare, file with the SEC and furnish to such Holder a reasonable number of copies of a supplement or file any other required document amendment to such Prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the such Prospectus will not contain an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleadingmisleading in light of the circumstances under which they were made;
(lg) promptly obtain the withdrawal or lifting of any stop order suspending the effectiveness of a Registration Statement, any order suspending or preventing the use of any related Prospectus or any suspension of the qualification or exemption from qualification of any Registrable Securities for sale in any jurisdiction;
(h) not file or make any amendment to any Registration Statement with respect to any Registrable Securities, or any amendment of or supplement to the Prospectus used in connection therewith, that refers to any Holder covered thereby by name or otherwise identifies such Holder as the holder of any securities of the Company without the consent of such Holder (such consent not to be unreasonably withheld or delayed), unless and to the extent such disclosure is required by Law;
(i) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar the Common Stock is then listed or, if the Common Stock is not then listed on any securities issued exchange, use its commercially reasonable efforts to cause such Registrable Securities to be listed on a national securities exchange selected by the Company are then listed if requested by after consultation with the holders of Holders participating in such registration;
(j) provide a majority of transfer agent and registrar (which may be the same entity) for all such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of any Holder participating in the holders of a majority of the Registrable Securitiesregistration, any underwriter participating in any disposition Underwritten Offering pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by the sellers any such Holder or underwriterunderwriter for such purpose, all corporate documents, financial and other records, pertinent corporate documents records relating to the Company and properties of the Company, its business reasonably requested by such Holder or underwriter and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeHolder, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationregistration or offering and make senior management of the Company and the Company’s independent accountants available for customary due diligence and drafting sessions; provided provided, that any recordsPerson gaining access to information or personnel of the Company pursuant to this Section 10(k) shall (i) reasonably cooperate with the Company to limit any resulting disruption to the Company’s business, and (ii) protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential and of which determination such Person is notified, unless such information (A) is or becomes known to the public without a breach of this Agreement, (B) is or becomes available to such Person on a non-confidential basis from a source other than the Company, (C) is independently developed by such Person, (D) is required by a deposition, interrogatory, request for information or documents that are designated by a Government Authority, subpoena or similar process or (E) is otherwise required to be disclosed by Law, in the case of clause (D) and (E), after giving the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderreasonable written notice and opportunity to object;
(pl) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holdersshareholders, as soon as reasonably practicable, an earnings statements satisfying statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act, no later than 45 days after Act and Rule 158 under the end Securities Act or any successor rule thereto) covering the period of any at least twelve (12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, months beginning with the first month (1st) day of the Company's ’s first full fiscal quarter commencing after the effective date of the applicable Registration Statement, which statements requirement shall cover said 12be deemed satisfied if the Company timely files complete and accurate information on Forms 10-month periodsK, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) in the case of an Underwritten Offering of Registrable Securities, promptly incorporate in a supplement to the Prospectus or a post-effective amendment to the Registration Statement such information as is reasonably requested by the managing underwriter(s) or any Holder participating in such Underwritten Offering to be included therein, the purchase price for the securities to be paid by the underwriters and any other applicable terms of such Underwritten Offering, and promptly make all required filings of such supplement or post-effective amendment;
(n) in the case of an Underwritten Offering of Registrable Securities, enter into such customary agreements (including underwriting and, subject to Section 8 hereof, lock-up agreements in customary form) and take all such other customary actions as any Holder participating in such offering or the managing underwriter(s) of such offering reasonably requests in order to expedite or facilitate the disposition of such Registrable Securities;
(i) furnish to each underwriter, if any, participating in an offering of Registrable Securities (A) all legal opinions of outside counsel to the Company required to be included in the Registration Statement and (B) a written legal opinion of outside counsel to the Company, dated the closing date of the offering, in form and substance as is customarily given in opinions of outside counsel to the Company to underwriters in underwritten registered offerings; and (ii) (A) obtain all consents of independent public accountants required to be included in the Registration Statement and (B) furnish on the date of the applicable Prospectus, on the effective date of any post-effective amendment to the Registration Statement and at the closing of the offering, dated the respective dates of delivery of each of the foregoing, a “comfort letter” signed by the Company’s independent public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(p) in the case of an underwritten offering of Registrable Securities, make senior management of the Company available, to the extent requested by the managing underwriter(s), to assist in the marketing of the Registrable Securities to be sold in such underwritten offering, including the participation of such members of senior management of the Company in “road show” presentations and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in such underwritten offering, and otherwise facilitate, cooperate with, and participate in such underwritten offering and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary underwritten registered offering of its Common Stock;
(q) cooperate with the Holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the Holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System;
(r) not later than the effective date of such Registration Statement, provide a CUSIP number for all Registrable Securities covered thereby and provide the applicable transfer agent with printed certificates for the Registrable Securities in a form eligible for deposit with The Depository Trust Company; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of The Depository Trust Company’s Direct Registration System; and
(qs) promptly prior otherwise use its commercially reasonable efforts to take or cause to be taken all other actions necessary or reasonably advisable to effect the registration, marketing and sale of such Registrable Securities contemplated by this Agreement. Each Holder shall furnish to the filing of any document which is to be incorporated Company in writing such information regarding itself and the distribution proposed by reference into it as the Company may reasonably request for use in connection with a Registration Statement or Prospectus, and the Company shall not be obligated to effect any registration of such Holder’s Registrable Securities unless and until such Holder shall have furnished to the Company in writing such information. Each Holder agrees to notify the Company as promptly as practicable of any inaccuracy or change in information previously furnished to the Company by such Holder or of the occurrence of any event that would cause the Prospectus (after initial filing included in such Registration Statement to contain an untrue statement of a material fact regarding such Holder or the distribution of such Registrable Securities or to omit to state any material fact regarding such Holder or the distribution of such Registrable Securities required to be stated therein or necessary to make the statements made therein not misleading in light of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities circumstances under which they were made and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company Company, as promptly as practicable, any additional information required to correct and update the information previously furnished by such information Holder such that such Prospectus shall not contain any untrue statement of a material fact regarding such Holder or the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition or omit to state a material fact regarding such Holder or the distribution of such Registrable Securities that, upon receipt of any notice from necessary to make the Company statements therein not misleading in light of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings circumstances under which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicethey were made.
Appears in 2 contracts
Samples: Shareholder Agreement (Riot Blockchain, Inc.), Stock Purchase Agreement (Riot Blockchain, Inc.)
Registration Procedures. In connection with If and whenever the Company's Company is required to use its reasonable efforts to effect or cause the registration obligations pursuant of any Registrable Securities under the Securities Laws as provided in this Agreement or, as applicable, the Holders sell or seek to sell Registrable Securities under the Shelf Registration Statement as provided in Section 3 hereofof this Agreement, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofwill, and pursuant thereto the Company will as expeditiously as possible:
(ai) prepare and file with the SEC, as soon as practicable, Commissions a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its reasonable efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements theretoprovided, the Company will furnish may discontinue any registration of its securities which is being effected pursuant to Section 4 at any time prior to the holders effective date of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectregistration statement relating thereto;
(bii) prepare and file with the SEC Commissions such amendments and post-effective amendments supplements to the such Registration Statement and any prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, Effectiveness Period in the case of the Shelf Registration Statement or for a period not in excess of 60 days (or such shorter period during which will terminate when all Registrable Securities covered by such the distribution of securities thereunder continues) in the case of Registration Statement have been sold; Statements filed pursuant to Section 4 of this Agreement, cause the Prospectus related prospectus to be supplemented by any prospectus supplement required Prospectus supplementby applicable law, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; Laws and to comply with the provisions of the Securities Act Laws with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof set forth in such Registration Statement or supplement to the Prospectus(so long as such intended methods of disposition are commercially reasonable); the Company shall not be deemed to have used its best efforts to keep provided, that before filing a Registration Statement effective during or prospectus, or any amendments or supplements thereto, or any prospectus supplement, the applicable period if it voluntarily takes any action that would result in selling holders Company will furnish to one counsel selected by the Holders of a majority of the Registrable Securities covered thereby not being able by such Registration Statement to sell represent all Holders of Registrable Securities covered by such Registration Statement, copies of all documents proposed to be filed, which documents will be subject to the review of such counsel;
(iii) furnish to each seller of such Registrable Securities during that period unless such action is required under applicable lawnumber of copies of such Registration Statement and of each amendment and supplement thereto (in each case including all exhibits and documents incorporated by reference), provided that such number of copies of the foregoing shall not apply to actions taken by the Company prospectus included in good faith such Registration Statement (including each preliminary prospectus) and for valid business reasonsof each amendment and supplement thereto, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies in conformity with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptlyLaws, and (if requested by any such Person) confirm other documents as such advice seller may reasonably request in writing, (1) when order to facilitate the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification disposition of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for by such purpose and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingseller;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(eiv) if requested by the managing underwriter or underwriters (if any) or the Holders of a holder majority in aggregate principal amount of the Registrable Securities being sold in connection with an underwritten offering, (a) promptly incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters and the holders of a majority of the Registrable Securities being sold agree should (if any), their counsel, such Holders or Holders' Counsel determine is reasonably necessary to be included therein relating to the plan of distribution with respect to such Registrable Securitiestherein, including, without limitation, information with respect to the number 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 underwrittenb) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus prospectus supplement or such post-effective amendment as soon as notified practicable after the Company has received notification of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;, and (c) supplement or make amendments to such registration statement.
(fv) furnish use its reasonable efforts to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment register or supplement thereto as qualify such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the such registration or qualification of statement under such Registrable Securities for offer and sale under the other securities or blue sky laws of such jurisdictions as any each seller or underwriter shall reasonably requests in writing request, and do any and all other acts or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; provided such seller, except that the Company will shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where where, but for the requirements of this clause (v), it is would not then be obligated to be so qualified qualified, to subject itself to taxation in any such jurisdiction, or to take any action which would subject it consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(jvi) use its best reasonable efforts to cause the such Registrable Securities covered by the applicable Registration Statement 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kvii) upon the occurrence notify each seller of any event contemplated such Registrable Securities covered by paragraph such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Laws within the appropriate period mentioned in clause (c)(6ii) aboveof this Section 5, of the Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and at the request of any such seller, prepare and furnish to such seller a supplement reasonable number of copies of an amended or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such 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;
(lviii) cause otherwise use its reasonable efforts to comply with all applicable rules and regulations of the Commissions, 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 earnings statement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations promulgated thereunder;
(ix) use its reasonable efforts to list such Registrable Securities on any Securities Exchange on which the Subordinate Voting Shares are 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 to provide a transfer agent and registrar for such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) registration statement not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nx) enter into such customary agreements (including an underwriting agreementagreement in customary form) and take all such other actions in connection therewith as sellers of a majority of shares of such Registrable Securities or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Securities;
(1xi) make such representations and warranties use its reasonable efforts 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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof letter or letter from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in by "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, as the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders seller or sellers of a majority of the shares of such Registrable Securities being sold and shall reasonably request (provided that Registrable Securities constitute at least 25% of the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into securities covered by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderRegistration Statement);
(oxii) make available for inspection by a representative representatives of the holders sellers of a majority of the such Registrable SecuritiesSecurities covered by such registration statement, by any underwriter participating in any disposition to be effected pursuant to such registrationregistration statement and by any attorney, and any attorney accountant or accountant other agent retained by the such sellers 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 officers, directors and employees to supply all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registration; provided that any records, information or documents that are designated by the Company registration statement (subject to each party referred to in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
this clause (pxii) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters entering into customary confidentiality agreements in a firm or best efforts underwritten offering, or (2) if not sold form reasonably acceptable to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods); and
(qxiii) promptly prior use its reasonable efforts (taking into account the interests of the Company) to make available the senior executive officers of the Company to participate in customary "road show" presentations that may be reasonably requested by the Holders and the managing underwriter in any underwritten offering; provided that the participation of such senior executive officers shall not interfere with the conduct of their duties to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company with such information regarding such seller and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder Holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in clause (vii) of this Section 6(k) hereof5, such holder Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holderHolder's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by clause (vii) of this Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus5, and, if so directed by the Company, such holder Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holderHolder's possession, of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance mentioned in clause (ii) of such Registration Statement this Section 5 shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to clause (vii) of this Section 6(c)(6) hereof to 5 and including the date when each seller of Registrable Securities covered by such Registration Statement registration statement shall have received the copies of the supplemented or amended prospectus contemplated by clause (vii) of this Section 6(k) hereof or the Advice5.
Appears in 2 contracts
Samples: Registration Rights Agreement (Quebecor Printing Inc), Registration Rights Agreement (Quebecor Printing Inc)
Registration Procedures. (a) In connection with the Company's registration obligations of the Company pursuant to Section 3 hereofand in accordance with this Agreement, the Company will use its best commercially reasonable efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, of which the Stockholder and pursuant thereto the other Investors have notified the Company will prior to the filing by the Company of the applicable Registration Statement, as expeditiously promptly as possiblereasonably practicable, and the Company shall:
(ai) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewithSecurities, cooperate with underwriters’ counsel in an underwritten offering in connection with all required filings with FINRA and assist in any filings required to be made with the NASD, and thereafter use best its commercially reasonable efforts to cause such Registration Statement to become effectiveeffective upon filing but in any event as soon as reasonably practicable after the filing of such Registration Statement; provided provided, that before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (other than reports required to be filed by it under the Exchange Act that are incorporated or deemed to be incorporated by reference into the Registration Statement that do not relate to an offering of Registrable Securities pursuant to this Agreement), the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement Stockholder and the underwriters, if any, other Investors copies of all such documents proposed to be filed. In the case of a Registration Statement pursuant to Section 1.1 or 1.2, which documents will be subject if the Stockholder informs the Company that it has any objections to the reasonable review filing of such holders and underwritersRegistration Statement, and amendment or supplement, the Company will not file such Registration Statement, amendment or supplement. In the case of a Registration Statement pursuant to Section 1.5, the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to such Registration Statement to which the holders Stockholder will have reasonably objected on the grounds that such amendment or supplement does not comply in all material respects with the requirements of a majority the Securities Act or of the rules or regulations thereunder, provided that the Company shall have the opportunity to make such Registration Statement or amendment or supplement thereto compliant in all material respects with such requirements and thereafter file such Registration Statement or amendment or supplement;
(ii) use commercially reasonable efforts to prepare and file with the SEC such amendments and supplements to any Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until all of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; disposed of and comply with the provisions applicable requirements of the Securities Act with respect to the disposition of all securities the Registrable Securities covered by such Registration Statement during Statement;
(iii) furnish to the applicable period in accordance with Stockholder, the intended method or methods other Investors and any managing underwriters, without charge, such number of distribution by the sellers thereof set forth in conformed copies of such Registration Statement and of each post-effective amendment thereto, and deliver, without charge, such number of copies of each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such other documents as the Stockholder and the other Investors may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by it or supplement any other Investor;
(iv) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the ProspectusStockholder and the other Investors reasonably request in writing; provided, that the Company shall not be deemed required to have used qualify generally to do business, subject itself to taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for its best efforts obligations pursuant to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of this Section 6(k1.7(a)(iv), if applicable;
(cv) promptly as reasonably practicable notify the selling holders of Registrable Securities Stockholder and the managing underwritersother Investors, if anyat any time when a prospectus relating thereto is required to be delivered under the Securities Act, promptlyupon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, as promptly as practicable, prepare and furnish to the Stockholder and the other Investors a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made; provided, that any Investor receiving information pursuant to this Section 1.7(a)(v) shall hold any of the information communicated pursuant to this Section 1.7(a)(v) in confidence until is publicly disclosed;
(if requested by any such Personvi) confirm such advice in writing, promptly as reasonably practicable notify the Stockholder and the other Investors (1A) when the Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, filed and, with respect to the such Registration Statement or any post-effective amendment, when the same has become effective, (2B) of any request by the SEC for amendments or supplements to the such Registration Statement or the Prospectus to amend or to supplement such prospectus or for additional information, (3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement or the initiation of any proceedings for that purpose, such purpose and (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5D) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or or, to the knowledge of the Company, threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingpurpose;
(dvii) make every use commercially reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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 cause 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange exchange, if any, on which similar securities issued by the Company are then listed or, if requested no similar securities issued by the holders of a majority of Company are then listed on any securities exchange, use its commercially reasonable efforts to cause all such Registrable Securities or to be listed on such securities exchange reasonably selected by the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nviii) enter into such customary agreements (including an underwriting agreementagreements in form, scope and substance as is acceptable to the Company acting reasonably) and take all such appropriate and reasonable other actions in connection therewith as the Stockholder, the Investors or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities Securities¸ including making members of senior management of the Company available to participate on a reasonable basis in “road show” and other customary marketing activities reasonably requested by the managing underwriter(s), in each case consistent with the historical practices of the Company for an underwritten offering by the Company having an aggregate offering size greater than fifty million dollars ($50 million);
(ix) if such connection, whether or not an underwriting agreement is entered into and whether or not the registration offering is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, offering or if any, in form, substance and scope as are customarily made required by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders financial institution facilitating any sale of Registrable Securities and the underwritersSecurities, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative of the holders of a majority of Stockholder, the Registrable Securitiesother Investors, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney counsel, accountant or accountant other agent retained by the sellers Stockholder and the other Investors or any such underwriter, all financial and other records, pertinent corporate documents and properties of the CompanyCompany related to the Company and its business as will be reasonably necessary and requested by such Investor(s) or underwriters to enable them to reasonably exercise their due diligence responsibilities, provided that each of the Stockholder, the other Investors, any such underwriter and cause any counsel, accountant or other agent retained by the Stockholder, the other Investors or any such underwriter will, if requested, enter into a confidentiality agreement satisfactory to the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(px) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement in a form that satisfies the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder, no later than 45 days after which requirement shall be deemed satisfied if the end Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(xi) in the event of the issuance of any 12-month period stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or ceasing trading of any securities included in such Registration Statement for sale in any jurisdiction, use commercially reasonable efforts promptly to obtain the withdrawal of such order at the earliest practicable time;
(or 90 days, xii) if such period offering is an underwritten offering or if required by a fiscal year) (1) commencing at financial institution facilitating any sale of Registrable Securities, use commercially reasonable efforts to furnish to the end of any fiscal quarter in which Registrable Securities are sold Stockholder, each underwriter and the other Investors one or more comfort letters, addressed to underwriters in a firm or best efforts underwritten offeringthe underwriters, the Stockholder and the Investors, dated the effective date of, or the date of the final receipt issued for, such Registration Statement (2the date of the closing under the underwriting agreement for such offering), signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters in similar underwritten offerings;
(xiii) if not sold such offering is an underwritten offering or if required by a financial institution facilitating any sale of Registrable Securities, use commercially reasonable efforts to underwriters in such an offering, beginning with the first month provide legal opinions of the Company's first fiscal quarter commencing after ’s outside counsel, addressed to the underwriters, dated the effective date of, or the date of the final receipt issued for, such Registration Statement (the date of the closing under the underwriting agreement for such offering), each amendment and supplement thereto, with respect to the Registration Statement, which statements shall cover said 12-month periodseach amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature;
(xiv) make available to the Stockholder and the other Investors each item of correspondence from the SEC or the staff of the SEC and each item of correspondence written by or on behalf of the Company to the SEC or the staff of the SEC, in each case solely relating to such Registration Statement; and
(qxv) promptly prior use commercially reasonable efforts to procure the cooperation of the Company’s transfer agent in settling any Transfer of Registrable Securities, including (A) with respect to the filing transfer of any document which physical share certificates representing shares of Company Common Stock into book-entry form in accordance with any procedures reasonably requested by the Stockholder or the Investors or the underwriters, and (B) to the extent such Registrable Securities are subject to a restrictive legend, by removing such legend (or eliminating or terminating such comparable notations or arrangements on securities held in book-entry form) and, if required by the Company’s transfer agent, delivering an opinion of the Company’s counsel that the restriction referenced in such legend (or such notations or arrangements) is no longer required in order to ensure compliance with the Securities Act.
(b) The Company agrees not to file or make any amendment to any disclosure regarding the Stockholder or any other Investor in any Registration Statement with respect to any Registrable Securities, or any amendment of or supplement to the prospectus used in connection therewith, without the consent of the Stockholder (any such consent to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statementbinding on each other Investor), provide copies of such document to counsel to the selling holders of Registrable Securities in its sole discretion, unless and to the managing underwriters, if any, make the Company's representatives available for discussion of extent such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. disclosure is required by applicable Law.
(c) The Company may require each seller of Registrable Securities as to which the Stockholder and any registration is being effected other Investor to furnish to the Company with such information regarding the Stockholder and such other Investor and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as may be required by the Securities Act. If within five (5) Business Days of the receipt of such a written request from the Company, the Stockholder or any other Investor fails to provide to the Company any information relating to the Stockholder or such Investor, as applicable, that is required by applicable Law to be disclosed in the Registration Statement, the Company may from time to time reasonably request in writing. Each holder of exclude the Stockholder’s and such Investor’s, as applicable, Registrable Securities from such Registration Statement.
(d) The Stockholder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k1.7(a)(v), 1.7(a)(vi)(B), 1.7(a)(vi)(C) or 1.7(a)(vi)(D) hereof, to the extent that such holder will forthwith discontinue event requires the discontinuance of the disposition of Registrable Securities until covered by a Registration Statement or the related prospectus and such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereofnotice reasonably requests such discontinuance, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumedStockholder shall discontinue, and has received copies shall cause each Investor to discontinue, disposition of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received or the related prospectus until receipt of the copies of the supplemented or amended prospectus contemplated by Section 6(k1.7(a)(iii) hereof hereof, which supplement or amendment shall be prepared and furnished as soon as practicable, or until the AdviceStockholder and the other Investors are advised in writing by the Company that the use of the applicable prospectus may be resumed, and has received copies of any amended or supplemented prospectus or any additional or supplemental filings which are incorporated, or deemed to be incorporated, by reference in such prospectus (such period during which disposition is discontinued being an “Interruption Period”) and, if requested by the Company, the Stockholder shall, and shall cause each of the other Investors to, use its commercially reasonable efforts to destroy or return to the Company all copies then in its possession, other than permanent file copies then in such holder’s possession, of the prospectus covering such Registrable Securities at the time of receipt of such request. As soon as practicable (and in any event no later than two (2) Business Days) after the Company has determined that the use of the applicable prospectus may be resumed, the Company shall provide written notice to the Stockholder and the other Investors. In the event the Company invokes an Interruption Period hereunder, as soon as practicable (and in any event no later than two (2) Business Days) after the need for the Company to continue the Interruption Period ceases for any reason, the Company shall provide written notice to the Stockholder and the other Investors that such Interruption Period is no longer applicable. Notwithstanding anything in this paragraph to the contrary, no Interruption Period shall exceed sixty (60) days and, in any calendar year, no more than one hundred twenty (120) days in the aggregate may be part of an Interruption Period.
Appears in 2 contracts
Samples: Registration Rights Agreement (Envestnet, Inc.), Investment Agreement (Envestnet, Inc.)
Registration Procedures. In connection with the Company's registration obligations Registration to be effected pursuant to Section 3 hereofthe Resale Shelf Registration Statement, and whenever the Investor Parties have requested that any Registrable Securities be registered pursuant to this Agreement or have initiated a Takedown Offering, the Company will shall use its reasonable best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as reasonably possible:
(a) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the SECCommission a registration statement, and all amendments and supplements thereto and related prospectuses as soon as practicablemay be necessary to comply with applicable securities laws, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause such Registration Statement registration statement to become effective; effective (provided that at least five (5) Business Days before filing a Registration Statement such registration statement or Prospectus prospectus or any amendments or supplements thereto, the Company will shall furnish to counsel selected by the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, Applicable Approving Party copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comment of such holders and underwriterscounsel, and no such document shall be filed with the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto Commission to which the holders of a majority of the Registrable Securities covered by such Registration Statement any Investor Party or the underwriters, if any, shall its counsel reasonably objectobjects);
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions notify each Investor Party of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(ci) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement any registration statement or the initiation of any proceedings for that purpose, (4ii) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company or its counsel 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 purpose, and (6iii) the effectiveness of each registration statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective until the expiration of the Effectiveness Period (but not in any event before the expiration of any longer period required under the Securities Act or, if such registration statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) 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 the sellers thereof set forth in such registration statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such registration statement, each amendment and supplement thereto, the prospectus included in such registration statement (including each preliminary prospectus), each Free Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such registration statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to such registration statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such registration statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which makes the prospectus included in such registration statement contains an untrue statement of a material fact or omits any statement made in fact necessary to make the Registration Statementstatements therein not misleading, and, at the request of any such seller, the Prospectus Company promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order fact necessary to make the statements therein not misleading;
(dh) make every reasonable effort cause all such Registrable Securities to obtain be listed on each securities exchange on which similar securities issued by the withdrawal of any order suspending Company are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the effectiveness generality of the Registration Statement foregoing, to arrange for at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment least two market makers to register as such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information Securities with respect to the number 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 amendmentFINRA;
(fi) furnish to each selling holder of provide a transfer agent and registrar for all such Registrable Securities and each managing underwriter, without charge, at least one signed copy not later than the effective date of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference)such registration statement;
(gj) deliver to each selling holder of Registrable Securities enter into and perform such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without chargelimitation, preparing for and participating in such number of “road shows,” investor presentations and marketing events as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as underwriters managing such Persons offering may reasonably request; );
(k) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition 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 and business documents and properties of the Company consents as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such registration statement;
(l) take all reasonable actions to ensure that any Free Writing Prospectus utilized in connection with any Demand Registration (including any Shelf Registration), Takedown Offering, Piggyback Registration or Piggyback Shelf Takedown hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(m) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission;
(n) permit any Investor Party who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of the Company to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to the Company in writing, which in the reasonable judgment of such Investor Party and its counsel should be included;
(o) in the event of the issuance of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the use of any related prospectus or suspending the Prospectus or qualification of any amendment or supplement thereto by each Common Stock included in such registration statement for sale in any jurisdiction, use its reasonable best efforts promptly to obtain the withdrawal of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the such order;
(p) use its reasonable best efforts to cause such Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the such registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kq) upon cooperate with the occurrence Investor Parties 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 event contemplated restrictive legends) representing securities to be sold under the registration statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such Investor Parties may request;
(r) cooperate with each Investor Party covered by paragraph the registration statement and each underwriter or agent participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(c)(6s) aboveif such registration includes an underwritten Public Offering, prepare use its reasonable best efforts to obtain a supplement or posteffective amendment cold comfort letter from the Company’s independent public accountants and addressed to the underwriters, in customary form and covering such matters of the type customarily covered by cold comfort letters as the underwriters in such registration reasonably request;
(t) provide a legal opinion of the Company’s outside counsel, 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), with respect to the registration statement, each amendment and supplement thereto, the prospectus included therein (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(u) if the Company files an Automatic Shelf Registration Statement covering any Registrable Securities, use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(v) if the Company does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered Registrable Securities are to be sold;
(w) subject to the purchasers terms of Section 2(b) and Section 2(c), if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when the Prospectus will Company is required to re-evaluate its WKSI status the Company determines that it is not contain an untrue a WKSI, use its reasonable best efforts to refile the registration statement of on Form S-3 and keep such registration statement effective (including by filing a material fact new Resale Shelf Registration or omit Shelf Registration, if necessary) during the period throughout which such registration statement is required to state any material fact necessary to make the statements therein not misleadingbe kept effective;
(lx) cause all cooperate with each Investor Party that holds Registrable Securities covered by being offered and the managing underwriters with respect to an applicable Registration Statement, if any, to facilitate the timely (i) preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to such Registration Statement, and enable such certificates to be registered in such names and in such denominations or amounts, as the case may be, or (ii) crediting of the Registrable Securities to be offered pursuant to a Registration Statement to be listed on each securities exchange on which similar securities issued by the applicable account (or accounts) with The Depository Trust Company are then listed if requested by the holders of a majority of (“DTC”) through its Deposit/Withdrawal At Custodian (“DWAC”) system, in any such Registrable Securities case as such Investor Party or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be may reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodsrequest; and
(qy) promptly prior for so long as this Agreement remains effective, (a) cause the Common Stock to be eligible for clearing through DTC, through its DWAC system; (b) be eligible and participating in the Direct Registration System (DRS) of DTC with respect to the filing of any document which Common Stock; (c) ensure that the transfer agent for the Common Stock is a participant in, and that the Common Stock is eligible for transfer pursuant to, DTC’s Fast Automated Securities Transfer Program (or the applicable successor thereto); and (d) use its reasonable best efforts to cause the Common Stock not to be incorporated by reference into at any time subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, including the Registration Statement or the Prospectus (after initial filing clearing of the Registration Statement), provide copies shares of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the ProspectusCommon Stock through DTC, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give Common Stock becomes subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, use its reasonable best efforts to cause any such notice, “chill,” “freeze” or similar restriction to be removed at the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceearliest possible time.
Appears in 2 contracts
Samples: Investment Agreement (Capital Senior Living Corp), Investment Agreement (Capital Senior Living Corp)
Registration Procedures. In connection Whenever the Purchaser has made a Request in accordance with the Company's registration obligations Section 6.1 that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts to effect such registration to permit will:
(a) not later than the sale 30th calendar day after the receipt by the Company of such a Request, prepare and file with the SEC a Required Registration Statement or Required Shelf Registration Statement, as the case may be, providing for the registration under the Securities Act of the Registrable Securities which the Company has been so requested to register in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof specified in such Request or requests, and shall include all financial statements required will use reasonable best efforts to have such Required Registration Statement or Required Shelf Registration Statement, as the case may be, declared effective by the SEC as soon as practicable thereafter and to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause keep such Registration Statement to become effective; provided that before filing a Required Registration Statement or Prospectus Required Shelf Registration Statement, as the case may be, continuously effective (i) in the case of a Demand Registration, for a period of at least 180 calendar days (or, in the case of an underwritten offering, such period as the underwriters will reasonably require) following the date on which such Required Registration Statement is declared effective (or any amendments or supplements thereto, the Company such shorter period which will furnish to the holders terminate when all of the Registrable Securities covered by such Required Registration Statement and have been sold pursuant thereto) or (ii) in the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders case of a majority of the Shelf Registration, until such time as all Registrable Securities covered by such Required Shelf Registration Statement have been sold pursuant thereto, including, in either case, if necessary, by filing with the SEC a post-effective amendment or a supplement to the Required Registration Statement or Required Shelf Registration Statement or the underwritersrelated prospectus or any document incorporated therein by reference or by filing any other required document or otherwise supplementing or amending the Required Registration Statement or Required Shelf Registration Statement, if anyrequired by the rules, shall reasonably objectregulations or instructions applicable to the registration form used by the Company for such Required Registration Statement or Required Shelf Registration Statement or by the Securities Act, the Exchange Act, any state securities or blue sky laws, or any rules and regulations thereunder;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during for the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable(a) above;
(c) furnish to the Purchaser such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as the Purchaser may reasonably request in order to facilitate the disposition of the Registrable Securities owned by the Purchaser;
(d) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the Purchaser reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable the Purchaser to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Purchaser; provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or (ii) consent to general service of process in any such jurisdiction;
(e) 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 underwriters of such offering and take such other actions as are prudent and reasonably required in order to expedite or facilitate the disposition of such Registrable Securities, including causing its officers to participate in “road shows” and other information meetings organized by the managing underwriters;
(f) notify the selling holders Purchaser, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and in such case, the Company will promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading;
(g) use its reasonable best efforts to cause all such Registrable Securities which are registered to be listed on each securities exchange on which similar securities issued by the Company are then listed;
(h) enter into such customary agreements and take all such other actions as the managing Purchaser or the underwriters, if any, promptlyreasonably request in order to expedite or facilitate the disposition of such Registrable Securities;
(i) make available for inspection by the Purchaser, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by the Purchaser or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and (if cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Person) confirm such advice in writing, (1) when the Prospectus Purchaser or any Prospectus supplement underwriter, attorney, accountant or post-effective amendment has been filedagent in connection with such Registration Statement;
(j) if such sale is pursuant to an underwritten offering, anduse reasonable best efforts to obtain “comfort” letters dated the pricing date of the offering of the Registrable Securities and the date of the closing under the underwriting agreement from the Company’s independent public accountants in customary form and covering such matters of the type customarily covered by “comfort” letters as the managing underwriter reasonably requests;
(k) use reasonable best efforts to furnish, at the request of the Purchaser on the date such securities are delivered to the underwriters for sale pursuant to such registration or are otherwise sold pursuant thereto, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal matters with respect to the registration in respect of which such opinion is being given as the underwriters, if any, and the seller may reasonably request and are customarily included in such opinions;
(l) use reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement or any post-registering such Registrable Securities;
(m) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable but no later than 15 months after the effective amendmentdate of the Registration Statement, when an earnings statement covering the same has become effectiveperiod of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, (2which earnings statement will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(n) cooperate with the Purchaser and each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with Financial Industry Regulatory Authority;
(o) promptly notify in writing the Purchaser and the underwriter, if any, of the following events:
(i) the effectiveness of any such Registration Statement;
(ii) any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, information and when same has been filed and become effective;
(3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings by any person for that purpose, ; and
(4iv) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence initiation or threat of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of proceeding for such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderpurpose;
(p) otherwise use its best efforts to comply with all applicable rules if requested by any underwriter, agree, and regulations cause the Company and any directors or officers of the SECCompany to agree, and make generally available to its security holders, earnings statements satisfying be bound by customer “lock-up” agreements restricting the provisions ability to dispose of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodsCompany securities; and
(q) promptly prior use reasonable best efforts to take all other steps reasonably necessary to effect the registration of the Registrable Securities contemplated hereby. If any such registration or comparable statement refers to the filing Purchaser by name or otherwise as the holder of any document which securities of the Company and if in its sole and exclusive judgment, the Purchaser is or might be deemed to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing a controlling person of the Registration Statement)Company, provide copies the Purchaser will have the right to require (i) the insertion therein of language, in form and substance satisfactory to the Purchaser and presented to the Company in writing, to the effect that the holding by the Purchaser of such document securities is not to counsel be construed as a recommendation by the Purchaser of the investment quality of the Company’s securities covered thereby and that such holding does not imply that the Purchaser will assist in meeting any future financial requirements of the Company or (ii) in the event that such reference to the selling holders Purchaser by name or otherwise is not required by the Securities Act or any similar federal statute then in force, the deletion of Registrable Securities and the reference to the managing underwriters, if any, make Purchaser; provided that with respect to this clause (ii) the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to Purchaser must furnish to the Company an opinion of counsel to such effect, which opinion and counsel will be reasonably satisfactory to the Company. In connection with any Registration Statement in which the Purchaser is participating, the Purchaser will furnish to the Company in writing such information regarding the distribution of such securities and affidavits as the Company may from time to time reasonably request requests specifically for use in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of connection with any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceprospectus.
Appears in 2 contracts
Samples: Common Stock Purchase Agreement (Coca Cola Co), Common Stock Purchase Agreement (Green Mountain Coffee Roasters Inc)
Registration Procedures. In connection with Upon the Company's receipt of a request for registration obligations of any Registrable Securities pursuant to Section 2 or Section 3 hereofof this Agreement, the Company will use its reasonable best efforts to effect such the registration to permit of the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare 9.1.1 Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any an appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, Act and use its reasonable best efforts to cause such Registration Statement to become effectiveeffective at the earliest practicable date; provided that before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will promptly furnish to the holders of the Registrable Securities covered by such Registration Statement to be registered pursuant to this Agreement (the “Registered Holders”) and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders the Registered Holders and the underwriters, and the Company will not file any Registration Statement or amendment thereto thereto, or any Prospectus prospectus or any supplement thereto (other than documents incorporated by reference) to which the holders of a majority of the Registrable Securities covered by such Registration Statement Registered Holders or the underwriters, if any, shall reasonably object;object in light of the requirements of the Securities Act and any other applicable laws and regulations.
(b) prepare 9.1.2 Prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus related prospectus to be filed pursuant to Rule 424(b) (or any successor provision) under the Securities Act; cause such prospectus to be supplemented by any required Prospectus supplementprospectus supplement and, and as so supplemented supplemented, to be filed pursuant to Rule 424 424(b) (or any successor provision) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof disposition set forth in such Registration Statement or prospectus or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Exchange Agreement (Earthstone Energy Inc), Exchange Agreement
Registration Procedures. In connection with (a) If and whenever the Company's Company is required to effect the registration obligations of any Registrable Securities pursuant to Section 3 hereofthis Agreement, the Company will shall use its reasonable best efforts to effect such registration to permit and facilitate the registration, offering and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as is practicable, and pursuant thereto the Company will shall as expeditiously as possible:
(ai) prepare and file with the SEC, as soon as practicable, SEC (within thirty (30) days after the date on which the Company has given Holders notice of any request for Demand Registration) a Registration Statement or Registration Statements on any appropriate form under the Securities Actwith respect to such Registrable Securities, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include make all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with (including Financial Industry Regulatory Authority filings) in connection therewith and thereafter and (if the NASD, and Registration Statement is not automatically effective upon filing) use its reasonable best efforts to cause such Registration Statement to become effective; provided that that, before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433), the Company will furnish to the holders of the Registrable Securities covered by Holders for such Registration Statement and the underwriters, if any, registration copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents will be subject to the reasonable review of such holders and underwriterscounsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC, and give the Holders participating in such registration an opportunity to comment on such documents and keep such Holders reasonably informed as to the registration process; provided, further, that if registration at the time would require the inclusion of pro forma financial or acquired business historical financial information, which requirement the Board determines the Company will not file any is reasonably unable to comply with, then the Company may defer the filing of the Registration Statement or amendment thereto or any Prospectus or any supplement thereto that is required to which effect the holders applicable registration for a reasonable period of a majority of the Registrable Securities covered by time to compile such Registration Statement or the underwriters, if any, shall reasonably objectinformation;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the any Registration Statement as may be necessary to keep the such Registration Statement effective for a period of either (A) not less than ninety (90) days or, if such Registration Statement relates to an Underwritten Offering in the applicable periodcase of a Demand Registration, such longer period as in the opinion of counsel for the managing underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or the maximum period of time permitted by the Securities Act in the case of a Shelf Registration Statement, or (B) such shorter period which will terminate ending when all of the Registrable Securities covered by such Registration Statement have been sold; cause disposed of (but in any event not before the Prospectus to be supplemented by expiration of any longer period required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ) and (ii) to comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during Statement;
(iii) furnish to each Selling Holder and the applicable period underwriters such number of copies, without charge, of any Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such other documents as such persons may reasonably request from time to time in accordance with order to facilitate the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders disposition of the Registrable Securities covered thereby not being able to sell owned by such Registrable Securities during that period unless such action is required under applicable lawSelling Holder; provided that, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition before amending or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by supplementing any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating Company shall furnish to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed Holders a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any such proposed amendment or supplement thereto as and not file any such Persons may proposed amendment or supplement to which any Selling Holder reasonably request; the objects. The Company hereby consents to the use of the Prospectus or any such prospectus and each amendment or supplement thereto by each of the selling holders Selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such prospectus and any such amendment or supplement thereto;
(hiv) prior use its reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such any Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller Selling Holder, and the managing underwriters, if any reasonably request, use its reasonable best efforts to keep each such registration or underwriter reasonably requests in writing qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or and things that may be necessary or reasonably advisable to enable such Selling Holder and each underwriter, if any, to consummate the disposition of the seller’s Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdictions; provided that the Company will not be required to (i) qualify generally to do business in any such jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any jurisdiction where it is not then so qualified subject or to take any action which would subject it (iii) consent to general service of process in any such jurisdiction where it is not then so subjectsubject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(iv) during any time when a prospectus is required to be delivered under the Securities Act, promptly notify each Selling Holder upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made and, as promptly as practicable, prepare and furnish to such Selling Holders a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(vi) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement,
(vii) cooperate with the selling holders of Registrable Securities Holders and the any managing underwriters, if any, underwriter(s) to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; sold, and enable certificates for such Registrable Securities to be in issued for such denominations number of shares and registered in such names as the Holders and any managing underwriters underwriter(s) may request at least two business days prior to any sale of Registrable Securities to the underwritersreasonably request;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(lviii) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed or, if no similar securities issued by the Company are then listed on any securities exchange, use its reasonable best efforts to cause all such Registrable Securities to be listed on the Nasdaq Global Select Market;
(ix) promptly notify each Selling Holder (i) when the Registration Statement, any prospectus supplement or any post-effective amendment to the Registration Statement has become effective (ii) of any written comments by the SEC or any request by the SEC for amendments or supplements to such Registration Statement or to amend or to supplement any prospectus contained therein or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceedings for any of such purposes, (iv) the removal of any such stop order, injunction or other order or requirement or proceeding or the lifting of any such suspension, (v) if at the time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 3(a)(xiii) below cease to be true and correct and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of such Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose;
(x) make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to the applicable Registration Statement and any attorney, accountant or other agent retained by any such Selling Holder or underwriter all financial and other records, pertinent corporate documents and documents relating to the business of the Company reasonably requested by such Selling Holder, cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Selling Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement and make senior management of the Company available for customary due diligence and drafting activity; provided that any such Person gaining access to information or personnel pursuant to this Section 3(a)(x) shall (i) reasonably cooperate with the Company to limit any resulting disruption to the Company’s business and (ii) agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such person is notified, unless (A) the release of such information is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (B) the release of such information, in the opinion of such person, is required to be released by law or applicable legal process, (C) such information is or becomes publicly known without a breach of this Agreement, (D) such information is or becomes available to such person on a non-confidential basis from a source other than the Company or (E) such information is independently developed by such person. In the case of a proposed disclosure pursuant to (A) or (B) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the holders Company, assist the Company in seeking to prevent or limit the proposed disclosure;
(xi) in the case of an underwritten offering, promptly incorporate in a majority prospectus supplement or post-effective amendment such information as the managing underwriters or any Selling Holder reasonably requests to be included therein, the purchase price being paid therefor by the underwriters and any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(xii) reasonably cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities or and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority;
(xiii) in the case of an underwritten offering, enter into such customary agreements (including underwriting agreements with customary provisions in such forms as may be requested by the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as the Selling Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and Securities;
(xiv) in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is case of an underwritten registration (1) offering, make such representations and warranties senior management of the Company available to assist to the holders extent reasonably requested by the managing underwriters of any Underwritten Offering to be made pursuant to such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth registration in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority marketing of the Registrable Securities being soldto be sold in the Underwritten Offering, including the participation of such members of the Company’s senior management in “road show” presentations and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in the Underwritten Offering, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary registered offering of its Common Stock
(xv) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; use reasonable best efforts to: (3a) obtain "cold comfort" letters and updates thereof from the Company's all consents of independent certified public accountants required to be included in the Registration Statement and (b) in connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the selling holders underwriters and to the Selling Holders, dated the date of Registrable Securities the underwriting agreement for such offering and the underwritersdate of each closing under the underwriting agreement for such offering, if any, such letters to be signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered in "cold comfort" by comfort letters by as the underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders or Holders of a majority of the Registrable Securities being sold in such offering, as applicable, reasonably request;
(xvi) use reasonable best efforts to obtain: (a) all legal opinions from Company Outside Counsel (or internal counsel) required to be included in the Registration Statement and (b) in connection with each closing of a sale of Registrable Securities, legal opinions from Company Outside Counsel (or internal counsel if acceptable to the managing underwriters), if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and addressed to the extent required thereunder;
(o) make available for inspection by a representative underwriters, dated as of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure date of such recordsclosing, information or documents is required by court or administrative order;
(p) otherwise use its best efforts with respect to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; andeach amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature;
(qb) promptly prior As a condition precedent to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing obligations of the Registration Statement)Company to file any registration statement covering Registrable Securities, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller Holder of Registrable Securities as to which any registration is being effected to shall furnish to the Company with such information regarding such Holder and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Holder agrees by acquisition of such the Registrable Securities that, that (i) upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof3(a)(v), such holder will Holder shall forthwith discontinue its disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver pursuant to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering registration statement relating to such Registrable Securities current at the time of until such Holder’s receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k3(a)(v); (ii) hereof or upon receipt of any notice from the AdviceCompany of the happening of any event of the kind described in clause (A) of Section 3(a)(ix), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement until such Holder’s receipt of the notice described in clause (iv) of Section 3(a)(ix); and (iii) upon receipt of any notice from the Company of the happening of any event of the kind described in clause (B) of Section 3(a)(xi), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement in the applicable state jurisdiction(s) until such Holder’s receipt of the notice described in clause (C) of Section 3(a)(ix). The length of time that any registration statement is required to remain effective shall be extended by any period of time that such registration statement is unavailable for use pursuant to this paragraph, provided in no event shall any registration statement be required to remain effective after the date on which all Registrable Securities cease to be Registrable Securities.
Appears in 2 contracts
Samples: Registration Rights Agreement (Enact Holdings, Inc.), Registration Rights Agreement (Genworth Mortgage Holdings, Inc.)
Registration Procedures. In connection with If and whenever the Company's registration obligations Company is required to register Registrable Securities pursuant to Section 3 hereofthis Agreement, the Company will use its best all commercially reasonable efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods plan of distribution thereof, thereof and pursuant thereto the Company will as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, SEC as soon as practicable, practicable a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best all commercially reasonable efforts to cause such Registration Statement to become effective and remain continuously effective until the date that is the earlier to occur of (i) the date six months from the date such Registration Statement was declared effective; , and (ii) the date the last of the Registrable Securities covered by such Registration Statement have been sold, provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will shall furnish to the holders Holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, draft copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of each Eligible Holder and such holders and underwriters, and the Company will shall not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement Eligible Holders or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement Statement, and such supplements to the Prospectus, as may be necessary requested by any underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when until all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period are sold in accordance with the intended method or methods plan of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Preferred Stock Purchase Agreement (Fieldworks Inc), Preferred Stock Purchase Agreement (Fieldworks Inc)
Registration Procedures. In connection with (a) When the Company's Company is required by the provisions of this Agreement to effect the registration obligations pursuant to Section 3 hereofof shares of Registrable Securities, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(ai) prepare and file with the SEC, as soon as practicable, Commission a Shelf Registration Statement or Registration Statements on any appropriate form under the Securities Act, (advance draft copies of which form shall be available for furnished to the sale holders of the Registrable Securities to be included in accordance such Shelf Registration Statement and their respective counsel as expeditiously as possible prior to the filing thereof with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC SEC) with respect to be filed therewith, cooperate and assist in any filings required to be made with the NASD, such shares and use its reasonable best efforts to cause such Shelf Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, and remain effective for the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectEffective Period as described in Section 2.1(c) hereof;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Shelf Registration Statement and the prospectuses used in connection therewith as may be necessary to keep the such Shelf Registration Statement effective for and current during the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus Effective Period and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities shares covered by such Shelf Registration Statement during the applicable period in accordance with Statement, including such amendments and supplements as may be necessary to reflect the intended method of disposition from time to time of the holder or methods holders of distribution by Registrable Securities who have requested that any of their shares be sold or otherwise disposed of in connection with the sellers thereof set forth in such registration (collectively, the “Prospective Sellers”) or to correct or update any misstatements or omissions which, if not corrected or updated, would reasonably be expected to cause the Registration Statement or supplement the prospectuses used in connection therewith to fail to comply with applicable disclosure requirements;
(iii) furnish to each Prospective Seller such number of copies of each prospectus, including preliminary prospectuses and amendments and supplements to any prospectus, or any free writing prospectus related thereof, in conformity with the Prospectus; requirements of the Securities Act, and such other documents as the Prospective Seller may reasonably request in order to facilitate the public sale or other disposition of the shares owned by it;
(iv) if applicable, register or qualify the shares covered by such Shelf Registration Statement under such other securities or blue sky or other applicable laws of such jurisdictions as each Prospective Seller shall reasonably request to enable such seller to consummate the public sale or other disposition of the shares owned by such seller, provided that the Company shall not be deemed required in connection therewith or as an election thereto to have used its best efforts qualify to keep do business or to file a Registration Statement effective during the applicable period if it voluntarily takes general consent to service of process in any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablejurisdiction;
(cv) promptly notify each Prospective Seller at any time when a prospectus relating thereto is required to be delivered under the selling holders Securities Act, of Registrable Securities and (x) the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when filing of the Prospectus Shelf Registration Statement or any Prospectus prospectus or prospectus supplement to be used in connection therewith, or post-effective any amendment has been filedor supplement thereto or any free writing prospectus related thereto, and, with respect to the Registration Statement such registration statement or any post-effective amendmentamendment thereto, when the same has become effective, ; and (2y) of any written comments from the SEC with respect to any filing referred to in clause (x) and any written request by the SEC for amendments or supplements to the Shelf Registration Statement or the Prospectus any prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus prospectus supplement thereto or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingfree writing prospectus related thereto;
(dvi) make every the Company shall permit counsel for the Prospective Sellers to review the Shelf Registration Statement and all amendments and supplements thereto (as well as all requests for acceleration or effectiveness thereof) a reasonable effort period of time prior to obtain their filing with the withdrawal of SEC, and not file any order suspending the effectiveness document in a form to which such counsel reasonably objects and will not request acceleration of the Shelf Registration Statement at the earliest possible momentwithout prior notice to such counsel;
(evii) if requested by the managing underwriter or underwriters or [reserved]
(viii) provide a holder of transfer agent and registrar for all such Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-not later than the effective amendment date of such information Shelf Registration Statement;
(ix) enter into such customary agreements and take all such other customary actions as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderSecurities;
(ox) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Prospective Seller and any attorney attorney, accountant or accountant other agent retained by the sellers or underwriterany such Prospective Seller, all reasonable financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent public accountants who have certified the Company’s financial statements included in the Registration Statement to supply all information reasonably requested by any such representativeseller, underwriterattorney, attorney accountant or accountant agent in connection with the preparation of such registration; provided that Registration Statement;
(xi) permit any recordsProspective Seller who, information or documents that are designated by in the reasonable judgment of the Company upon advice of counsel, might be deemed to be an underwriter or controlling person of the Company, to participate in writing as confidential shall be kept confidential by such Persons unless disclosure the preparation of such recordsRegistration Statement;
(xii) provide written notice to each Prospective Seller as soon as the Company becomes aware of any misstatements or omissions which, information if not corrected or documents is required by court updated, would reasonably be expected to cause the Shelf Registration Statement or administrative the prospectuses used in connection therewith to fail to comply with applicable disclosure requirements;
(xiii) in the event of the issuance of any stop order suspending the effectiveness of the Shelf Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the registration or qualification of any Registrable Securities included in such Shelf Registration Statement for sale in any jurisdiction where such shares had previously been registered or qualified upon the request of a Prospective Seller, use its reasonable best efforts to promptly obtain the withdrawal of such order;
(pxiv) the Company shall otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of SEC in connection with any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodsregistration hereunder; and
(qxv) promptly prior the Company shall take all other reasonable actions necessary to expedite and facilitate disposition by each Investor of its Registrable Securities pursuant to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Shelf Registration Statement), provide copies of such document to counsel to the selling holders .
(b) Each Prospective Seller of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to shall furnish to the Company such information regarding the distribution of such securities as the Company may reasonably require from time to time reasonably request the Prospective Seller for inclusion in writing. Each holder the Shelf Registration Statement (and the prospectus included therein).
(c) The Prospective Sellers shall not effect sales of Registrable Securities agrees the shares covered by acquisition of such Registrable Securities that, upon the Shelf Registration Statement after receipt of any facsimile or other written notice from the Company of to suspend sales to permit the happening of any event of Company to correct or update, including to add Option Shares or Option Notes, the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities Shelf Registration Statement or prospectus until such holder's receipt of the Investor receives copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the a supplemented or amended prospectus contemplated by Section 6(kthat corrects the misstatement(s) hereof or omission(s) referred to above and receives notice that any post-effective amendment has become effective.
(d) The Company shall have no obligation to provide an underwritten offering for the Adviceholders of Registrable Securities to dispose of their shares.
Appears in 2 contracts
Samples: Registration Rights Agreement (Endeavour International Corp), Securities Purchase Agreement (Endeavour International Corp)
Registration Procedures. In connection with (a) If and whenever the Company's Company is required to effect the registration obligations of any Registrable Securities pursuant to Section 3 hereofthis Agreement, the Company will shall use its reasonable best efforts to effect such registration to permit and facilitate the registration, offering and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as is practicable, and pursuant thereto the Company will shall as expeditiously as possible:
(ai) prepare and file with the SEC, as soon as practicable, SEC (within thirty (30) days after the date on which the Company has given Holders notice of any request for Demand Registration) a Registration Statement or Registration Statements on any appropriate form under the Securities Actwith respect to such Registrable Securities, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include make all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with (including Financial Industry Regulatory Authority filings) in connection therewith and thereafter and (if the NASD, and Registration Statement is not automatically effective upon filing) use its reasonable best efforts to cause such Registration Statement to become effective; provided that that, before filing a Registration Statement or Prospectus or any amendments or supplements theretothereto (including free writing prospectuses under Rule 433), the Company will furnish to the holders of the Registrable Securities covered by Holders for such Registration Statement and the underwriters, if any, registration copies of all such documents proposed to be filedfiled (including exhibits thereto), which documents will be subject to the reasonable review of such holders and underwriterscounsel, and such other documents reasonably requested by such counsel, including any comment letter from the SEC, and give the Holders participating in such registration an opportunity to comment on such documents and keep such Holders reasonably informed as to the registration process; provided, further, that if registration at the time would require the inclusion of pro forma financial or acquired business historical financial information, which requirement the Board determines the Company will not file any is reasonably unable to comply with, then the Company may defer the filing of the Registration Statement or amendment thereto or any Prospectus or any supplement thereto that is required to which effect the holders applicable registration for a reasonable period of a majority of the Registrable Securities covered by time to compile such Registration Statement or the underwriters, if any, shall reasonably objectinformation;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the any Registration Statement as may be necessary to keep the such Registration Statement effective for a period of either (A) not less than ninety (90) days or, if such Registration Statement relates to an underwritten offering in the applicable periodcase of a Demand Registration Statement, such longer period as in the opinion of counsel for the managing underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or the maximum period of time permitted by the Securities Act in the case of a Shelf Registration Statement, or (B) such shorter period which will terminate ending when all of the Registrable Securities covered by such Registration Statement have been sold; cause disposed of (but in any event not before the Prospectus to be supplemented by expiration of any longer period required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ) and (ii) to comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during Statement;
(iii) furnish to each Selling Holder and the applicable period underwriters such number of copies, without charge, of any Registration Statement, each amendment and supplement thereto, including each preliminary prospectus, final prospectus, all exhibits and other documents filed therewith and such other documents as such persons may reasonably request from time to time in accordance with order to facilitate the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders disposition of the Registrable Securities covered thereby not being able to sell owned by such Registrable Securities during that period unless such action is required under applicable lawSelling Holder; provided that, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition before amending or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by supplementing any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating Company shall furnish to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed Holders a copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any such proposed amendment or supplement thereto as and not file any such Persons may proposed amendment or supplement to which any Selling Holder reasonably request; the objects. The Company hereby consents to the use of the Prospectus or any such prospectus and each amendment or supplement thereto by each of the selling holders Selling Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or such prospectus and any such amendment or supplement thereto;
(hiv) prior use its reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such any Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller Selling Holder, and the managing underwriters, if any reasonably request, use its reasonable best efforts to keep each such registration or underwriter reasonably requests in writing qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or and things that may be necessary or reasonably advisable to enable such Selling Holder and each underwriter, if any, to consummate the disposition of the seller’s Registrable Securities in such jurisdictions of the Registrable Securities covered by the Registration Statementjurisdictions; provided that the Company will not be required to (i) qualify generally to do business in any such jurisdiction where it would not otherwise be required to qualify but for this subsection, (ii) subject itself to taxation in any jurisdiction where it is not then so qualified subject or to take any action which would subject it (iii) consent to general service of process in any such jurisdiction where it is not then so subjectsubject (other than service of process in connection with such registration or qualification or any sale of Registrable Securities in connection therewith);
(iv) during any time when a prospectus is required to be delivered under the Securities Act, promptly notify each Selling Holder upon discovery that, or upon the discovery of the happening of any event as a result of which, the prospectus contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made and, as promptly as practicable, prepare and furnish to such Selling Holders a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain any untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(vi) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement,
(vii) cooperate with the selling holders of Registrable Securities Holders and the any managing underwriters, if any, underwriter(s) to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; sold, and enable certificates for such Registrable Securities to be in issued for such denominations number of shares and registered in such names as the Holders and any managing underwriters underwriter(s) may request at least two business days prior to any sale of Registrable Securities to the underwritersreasonably request;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(lviii) cause all such Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed or, if no similar securities issued by the Company are then listed on any securities exchange, use its reasonable best efforts to cause all such Registrable Securities to be listed on the Nasdaq Global Select Market;
(ix) promptly notify each Selling Holder (i) when the Registration Statement, any prospectus supplement or any post-effective amendment to the Registration Statement has become effective (ii) of any written comments by the SEC or any request by the SEC for amendments or supplements to such Registration Statement or to amend or to supplement any prospectus contained therein or for additional information, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceedings for any of such purposes, (iv) the removal of any such stop order, injunction or other order or requirement or proceeding or the lifting of any such suspension, (v) if at the time the Company has reason to believe that the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 3(a)(xiii) below cease to be true and correct and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of such Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose;
(x) make available for inspection by any Selling Holder, any underwriter participating in any disposition pursuant to the applicable Registration Statement and any attorney, accountant or other agent retained by any such Selling Holder or underwriter all financial and other records, pertinent corporate documents and documents relating to the business of the Company reasonably requested by such Xxxxxxx Xxxxxx, cause the Company’s officers, directors, employees and independent accountants to supply all information reasonably requested by any such Selling Holder, underwriter, attorney, accountant or agent in connection with such Registration Statement and make senior management of the Company available for customary due diligence and drafting activity; provided that any such Person gaining access to information or personnel pursuant to this Section 3(a)(x) shall (i) reasonably cooperate with the Company to limit any resulting disruption to the Company’s business and (ii) agree to use reasonable efforts to protect the confidentiality of any information regarding the Company which the Company determines in good faith to be confidential, and of which determination such person is notified, unless (A) the release of such information is requested or required by deposition, interrogatory, requests for information or documents by a governmental entity, subpoena or similar process, (B) the release of such information, in the opinion of such person, is required to be released by law or applicable legal process, (C) such information is or becomes publicly known without a breach of this Agreement, (D) such information is or becomes available to such person on a non-confidential basis from a source other than the Company or (E) such information is independently developed by such person. In the case of a proposed disclosure pursuant to (A) or (B) above, such Person shall be required to give the Company written notice of the proposed disclosure prior to such disclosure and, if requested by the holders Company, assist the Company in seeking to prevent or limit the proposed disclosure;
(xi) in the case of an underwritten offering, promptly incorporate in a majority prospectus supplement or post-effective amendment such information as the managing underwriters or any Selling Holder reasonably requests to be included therein, the purchase price being paid therefor by the underwriters and any other terms of the underwritten offering of the Registrable Securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(xii) reasonably cooperate with each seller of Registrable Securities and each underwriter or agent participating in the disposition of such Registrable Securities or and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority;
(xiii) in the case of an underwritten offering, enter into such customary agreements (including underwriting agreements with customary provisions in such forms as may be requested by the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith as the Selling Holders or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and Securities;
(xiv) in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is case of an underwritten registration (1) offering, make such representations and warranties senior management of the Company available to assist to the holders extent reasonably requested by the managing underwriters of any Underwritten Offering to be made pursuant to such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth registration in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority marketing of the Registrable Securities being soldto be sold in the Underwritten Offering, including the participation of such members of the Company’s senior management in “road show” presentations and other customary marketing activities, including “one-on-one” meetings with prospective purchasers of the Registrable Securities to be sold in the Underwritten Offering, and otherwise to facilitate, cooperate with, and participate in each proposed offering contemplated herein and customary selling efforts related thereto, in each case to the same extent as if the Company were engaged in a primary registered offering of its Common Stock
(xv) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; use reasonable best efforts to: (3a) obtain "cold comfort" letters and updates thereof from the Company's all consents of independent certified public accountants required to be included in the Registration Statement and (b) in connection with each offering and sale of Registrable Securities, obtain one or more comfort letters, addressed to the selling holders underwriters and to the Selling Holders, dated the date of Registrable Securities the underwriting agreement for such offering and the underwritersdate of each closing under the underwriting agreement for such offering, if any, such letters to be signed by the Company’s independent public accountants in customary form and covering such matters of the type customarily covered in "cold comfort" by comfort letters by as the underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders or Holders of a majority of the Registrable Securities being sold in such offering, as applicable, reasonably request;
(xvi) use reasonable best efforts to obtain: (a) all legal opinions from Company outside counsel (or internal counsel) required to be included in the Registration Statement and (b) in connection with each closing of a sale of Registrable Securities, legal opinions from Company outside counsel (or internal counsel if acceptable to the managing underwriters), if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and addressed to the extent required thereunder;
(o) make available for inspection by a representative underwriters, dated as of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure date of such recordsclosing, information or documents is required by court or administrative order;
(p) otherwise use its best efforts with respect to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; andeach amendment and supplement thereto (including the preliminary prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature;
(qb) promptly prior As a condition precedent to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing obligations of the Registration Statement)Company to file any registration statement covering Registrable Securities, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller Holder of Registrable Securities as to which any registration is being effected to shall furnish to the Company with such information regarding such Holder and pertinent to the disclosure requirements relating to the registration and the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Holder agrees by acquisition of such Registrable Securities that, that (i) upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof3(a)(v), such holder will Holder shall forthwith discontinue its disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver pursuant to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering registration statement relating to such Registrable Securities current at the time of until such Holder’s receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k3(a)(v); (ii) hereof or upon receipt of any notice from the AdviceCompany of the happening of any event of the kind described in clause (A) of Section 3(a)(ix), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement until such Holder’s receipt of the notice described in clause (iv) of Section 3(a)(ix); and (iii) upon receipt of any notice from the Company of the happening of any event of the kind described in clause (B) of Section 3(a)(xi), such Holder shall discontinue its disposition of Registrable Securities pursuant to such registration statement in the applicable state jurisdiction(s) until such Xxxxxx’s receipt of the notice described in clause (C) of Section 3(a)(ix). The length of time that any registration statement is required to remain effective shall be extended by any period of time that such registration statement is unavailable for use pursuant to this paragraph, provided in no event shall any registration statement be required to remain effective after the date on which all Registrable Securities cease to be Registrable Securities.
Appears in 2 contracts
Samples: Registration Rights Agreement (Bowhead Specialty Holdings Inc.), Registration Rights Agreement (Bowhead Specialty Holdings Inc.)
Registration Procedures. In connection with (a) Whenever the Company's registration obligations Holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will use its best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possiblepracticable:
(ai) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided effective (provided, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to counsel selected by the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if anyStatement, copies of all such documents proposed to be filed, which documents will be subject to the reasonable timely review of such holders and underwriters, counsel and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto thereto, including documents incorporated by reference, to which the holders Holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall timely and reasonably object);
(bii) prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable periodnot more than six (6) months and, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such effective period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or and cause the Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act;
(iii) upon request, furnish to each seller of Registrable Securities such number of copies of such Registration Statement, each amendment and supplement to thereto, the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Prospectus included in such Registration Statement effective during (including each preliminary Prospectus and each Prospectus filed under Rule 424 of the applicable period if it voluntarily takes any action that would result Securities Act) and such other documents as each such seller may reasonably request in selling holders order to facilitate the disposition of the Registrable Securities covered thereby not owned by each such seller (it being able to sell such Registrable Securities during understood that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or and any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, such seller in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto);
(hiv) prior use its best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or blue sky laws of such jurisdictions as any seller reasonably requests, use its best efforts to keep each such Registration or underwriter reasonably requests in writing 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 or and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch seller; provided that the Company will not be required (A) to qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph (a)(iv), (B) to subject itself to taxation in any such jurisdiction or (C) to take any action which would subject it consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(iv) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the notify each seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon , at any time when a Prospectus relating thereto is required to be delivered under the occurrence Securities Act, of the happening of any event contemplated by paragraph as a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and, at the request of any such seller, the Company will promptly prepare (c)(6and, when completed, give notice to each seller of Registrable Securities) above, prepare a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; provided that upon such notification by the Company, each seller of such Registrable Securities will not offer or sell such Registrable Securities until the Company has notified such seller that it has prepared a supplement or amendment to such Prospectus and delivered copies of such supplement or amendment to such Seller;
(lvi) cause all such Registrable Securities covered by the Registration Statement to be listed listed, prior to the date of the first sale of such Registrable Securities pursuant to such Registration, on each securities exchange on which similar securities issued by the Company are then listed and, if requested by not so listed, to be listed with the holders of Nasdaq Stock Market;
(vii) provide a majority of transfer agent and registrar for all such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nviii) enter into all such customary agreements (including an underwriting agreementagreements in customary form) and take all such other actions in connection therewith as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited towithout limitation, those set forth in the Purchase Agreement; (2) obtain opinions effecting a stock split or a combination of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereundershares);
(oix) make available for inspection on a confidential basis by a representative of the holders of a majority of the Registrable Securitiesany seller, any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney attorney, accountant or accountant other agent retained by the sellers any such seller or underwriterunderwriter (in each case after reasonable prior notice), all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors directors, employees and employees independent accountants to supply on a confidential basis all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registration; provided that Registration Statement;
(x) permit any recordsholder of Registrable Securities which holder, information in its sole and exclusive judgment, might be deemed to be an underwriter or documents that are designated by a controlling person of the Company within the meaning of Section 15 of the Securities Act, to participate in the preparation of such registration or comparable statement and to permit the insertion therein of material, furnished to the Company in writing as confidential writing, which in the reasonable judgment of such holder and its counsel should be included, provided that such material shall be kept confidential by furnished under such Persons unless disclosure circumstances as shall cause it to be subject to the indemnification provisions provided pursuant to Section 8(b) hereof;
(xi) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any Registrable Securities included in such Registration Statement for sale in any jurisdiction, the Company will use its best efforts promptly to obtain the withdrawal of such records, information or documents is required by court or administrative order;
(pxii) otherwise if requested by the managing underwriter or underwriters or any holder of Registrable Securities in connection with any sale pursuant to a Registration Statement, promptly incorporate in a Prospectus supplement or post-effective amendment such information relating to such underwriting as the managing underwriter or underwriters or such holder reasonably requests to be included therein, 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;
(xiii) cooperate with the holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to be sold under such Registration, and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, or such holders may request;
(xiv) use its best efforts to cause the Registrable Securities to be registered with or approved by such other governmental agencies or authorities within the United States and having jurisdiction over the Company as may reasonably be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(xv) use its best efforts to obtain:
(A) at the time of effectiveness of each Registration, a "comfort letter" from the Company's independent certified public accountants covering such matters of the type customarily covered by "cold comfort letters" as the Holders of a majority of the Registrable Securities covered by such Registration and the underwriters reasonably request; and
(B) at the time of any underwritten sale pursuant to a Registration Statement, a "bring-down comfort letter", dated as of the date of such sale, from the Company's independent certified public accountants covering such matters of the type customarily covered by comfort letters as the Holders of a majority of the Registrable Securities covered by such Registration Statement and the underwriters reasonably request;
(xvi) use its best efforts to obtain, at the time of effectiveness of each Piggyback Registration and at the time of any sale pursuant to each Registration, an opinion or opinions, favorable in form and scope to the Holders of a majority of the Registrable Securities covered by such Registration, from counsel to the Company in customary form; and
(xvii) otherwise comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holders, holders (as contemplated by Section 11(a) under the Securities Act) an earnings statements statement satisfying the provisions of Section 11(a) of Rule 158 under the Securities Act, Act no later than 45 ninety (90) days after the end of any the twelve (12-) month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements statement shall cover said twelve (12-) month periods; andperiod.
(qb) promptly prior to Whenever the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders Holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of have requested that any Registrable Securities be registered pursuant to this Agreement, the Holders will as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities expeditiously as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company practicable comply with all applicable laws and rules and regulations of the happening of any event of the kind described Commission in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceconnection therewith.
Appears in 2 contracts
Samples: Registration Rights Agreement (Mce Companies Inc), Registration Rights Agreement (Mce Companies Inc)
Registration Procedures. In connection with Whenever required to effect the Company's registration obligations pursuant to Section 3 hereofof any Registrable Securities hereunder, the Company will use its best efforts shall, as expeditiously as reasonably possible, prepare and file with the Commission a registration statement with respect to effect such registration to permit the sale of such Registrable Securities and use all reasonable efforts to cause such registration statement to become effective. The Company also shall keep each Holder advised in accordance with writing as to the intended method or methods initiation of distribution each registration and as to the completion thereof, and pursuant thereto the Company will as expeditiously as possibleat its expense, use its commercially reasonable efforts to:
(a) prepare and file with Keep such registration effective for a period ending on the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale earlier of the Registrable Securities in accordance with date which is sixty (60) days from the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders effective date of the Registrable Securities covered by registration statement or such Registration Statement and time as the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to Holder or Holders have completed the reasonable review of such holders and underwriters, and distribution described in the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectregistration statement relating thereto;
(b) prepare Prepare and file with the SEC Commission such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection with such registration statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during registration statement for the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in subsection (a) above;
(c) Furnish such Registration Statement number of prospectuses, including any preliminary prospectuses, and other documents incident thereto, including any amendment of or supplement to the Prospectusprospectus, as a Holder from time to time may reasonably request;
(d) Use its reasonable best efforts to register and qualify the securities covered by such registration statement under such other securities or Blue Sky laws of such jurisdiction as shall be reasonably requested by the Holders; provided, that the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in therewith or as a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement condition thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 file a general consent to general service of process in any such jurisdiction where it is not then so subjectstates or jurisdictions;
(ie) 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 Cause all such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement pursuant hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodslisted; and
(qf) promptly prior In connection with any underwritten offering pursuant to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any a registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice statement filed pursuant to Section 6(c)(6) hereof 2.1 hereof, enter into an underwriting agreement in a form reasonably necessary to effect the offer and including the date when sale of Common Stock, provided such underwriting agreement contains reasonable and customary provisions, and provided further, that each seller of Registrable Securities covered by Holder participating in such Registration Statement underwriting shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicealso enter into and perform its obligations under such an agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Achaogen Inc), Investors’ Rights Agreement (Achaogen Inc)
Registration Procedures. In connection with Whenever the Company's registration obligations pursuant to Section 3 hereofSelling Stockholder shall have made a Notice of Demand or requested a Piggyback Registration, the Company will shall use its best all reasonable and diligent efforts to effect such the registration to permit the and sale of such Registrable Securities Shares in accordance with the intended method or methods of distribution thereofdisposition thereof and, and pursuant thereto thereto, the Company will shall as expeditiously as possible:
(a) and in any event within 30 calendar days of receipt of a Notice of Demand, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, Shares and use its reasonable best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus Prospectus, or filing any amendments amendment thereof or supplements supplement thereto, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject filed to counsel for the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectSelling Stockholder;
(b) prepare and file with the SEC Commission such amendments pre- and post-effective amendments of and supplements to the such Registration Statement and the Prospectus(es) used in connection therewith as may be (i) reasonably requested by the Selling Stockholder or (ii) necessary to keep the such Registration Statement effective for the applicable periodRegistration Period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the applicable Securities Act Laws with respect to the sale or other disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect furnish to the Registration Statement Selling Stockholder or any post-effective amendment, when counsel for the same has become effective, (2) Selling Stockholder such number of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) copies of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or Prospectus(es) included in such Registration Statement (including each preliminary Prospectus), any document incorporated therein by reference untrue or which requires other prospectus filed under Rule 424 promulgated under the making Securities Act relating to the Selling Stockholder’s Registrable Shares, any Issuer Free Writing Prospectuses, and each amendment of and supplement to any changes of the preceding, in conformity with the Registration Statementrequirements of the Securities Act, and such other documents as the Prospectus or any document incorporated therein by reference Selling Stockholder may reasonably request in order to make facilitate the statements therein not misleadingdisposition of the Registrable Shares under such Registration Statement;
(d) make every use its reasonable effort and diligent efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale Shares under the securities or blue sky laws of such jurisdictions as any seller or underwriter the Selling Stockholder reasonably requests and keep such registration or qualification in writing effect for so long as any Registration Statement remains in effect, and do any and all other acts or and things which may be reasonably necessary or advisable to enable the Selling Stockholder to consummate the disposition in such jurisdictions of the Registrable Securities covered by the Registration StatementShares; provided that the Company will shall not be required to (i) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this subparagraph; (ii) subject itself to taxation in any such jurisdiction; or to take any action which would subject it (iii) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(ie) cooperate promptly notify the Selling Stockholder, at any time when a Prospectus relating thereto is required to be delivered under the applicable Securities Laws (including in circumstances where such requirement may be satisfied pursuant to Rule 172 under the Securities Act) and when any Issuer Free Writing Prospectus includes information that may conflict with the selling holders of Registrable Securities and information contained in 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with (including any document incorporated by reference therein that has not been superseded or approved by such other governmental agencies or authorities as may be necessary to enable modified), of the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence happening of any event contemplated by paragraph (c)(6) aboveas a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, at the request of the Selling Stockholder, the Company shall promptly prepare a supplement or posteffective amendment and furnish to the Registration Statement Selling Stockholder a reasonable number of copies of an amendment of or the related supplement to such Prospectus or any document incorporated therein by reference or file any other required document an Issuer Free Writing Prospectus so that, as thereafter delivered to the purchasers of the Registrable SecuritiesShares, the such Prospectus will shall 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 the light of the circumstances under which they were made, not misleading; provided that upon receipt of any notice delivered in accordance with the provisions of this Article IV, the Selling Stockholder shall be deemed to have agreed that the Selling Stockholder shall forthwith discontinue such disposition of Registrable Shares pursuant to such Registration Statement and Prospectus until the receipt of the copies of the amended or supplemented Prospectus or Issuer Free Writing Prospectus contemplated by this Article IV and, if so directed by the Company, shall deliver to the Company all copies, other than permanent file copies, then in its possession of the Prospectus relating to such Registrable Shares current at the time of receipt of such notice;
(lf) cause all such Registrable Securities covered by the Registration Statement Shares to be listed listed, on or prior to the effective date of such Registration Statement, on each securities exchange or national market on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(mg) provide a transfer agent and registrar for all the Registrable Shares not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nh) enter into such customary agreements (including an underwriting agreementagreements) and take all such other customary actions in connection therewith as the Selling Stockholder or the underwriters, if any, and their counsel reasonably request in order to expedite or facilitate the disposition of such the Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Shares (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 primary underwritten offerings and covering matters including, but not limited to, those set forth effecting a stock split or a combination of shares) and, make reasonably available members of management of the Company, as selected by the Selling Stockholder, for assistance in the Purchase Agreement; (2) obtain opinions of counsel selling effort relating to the Company and updates thereof (which counsel and opinions (in formRegistrable Shares, scope and substance) shall be reasonably satisfactory to including, but not limited to, the managing underwriters, if any, and the holders participation of a majority such members of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered Company’s management in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters “road shows” scheduled in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver any such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderregistration;
(oi) make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesSelling Stockholder, any underwriter participating in any sale or other disposition pursuant to such registrationRegistration Statement, and any attorney legal counsel, accountant or accountant other agent retained by the sellers Selling Stockholder or any underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees, counsel and employees independent registered public accountants to supply all information reasonably requested by any the Selling Stockholder or such representativeseller, underwriter, attorney counsel, accountant or accountant agent in connection with such registrationRegistration Statement (including the opportunity to discuss the business of the Company with its officers and the independent registered public accountants who have certified its financial statements) as shall be necessary, in the opinion of their respective counsel, to conduct a reasonable investigation within the meaning of the Securities Act; provided that and give the Selling Stockholder and its counsel, accountant or agent and each underwriter the opportunity to participate in the preparation of such Registration Statement, each Prospectus included therein or each Prospectus filed with the Commission in connection therewith;
(j) promptly notify the Selling Stockholder and each underwriter, if any:
(i) when such Registration Statement or any recordsProspectus or Issuer Free Writing Prospectus used in connection therewith has been filed and, information with respect to such Registration Statement or documents that are designated any post-effective amendment thereof, when the same has become effective;
(ii) of any written comments from the Commission with respect to any filing referred to in clause (i) and of any written request by the Commission for amendments of or supplements to such Registration Statement, Prospectus or Issuer Free Writing Prospectus;
(iii) of the notification to the Company by the Commission or any other regulatory authority of its initiation of any proceeding with respect to, or of the issuance by the Commission or any other regulatory authority of, any stop order or notice suspending the effectiveness of such Registration Statement; and
(iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares for sale under the applicable securities or blue sky laws of any jurisdiction; and, in writing as confidential shall the case of clauses (ii), (iii) and (iv), promptly use all reasonable and diligent efforts to, respectively, (A) respond satisfactorily to any such comments and to file promptly any necessary amendments or supplements; (B) prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be kept confidential by issued; and (C) obtain the withdrawal of any such Persons unless disclosure suspension of such recordsqualification; and, information or documents is required by court or administrative orderin each case, keep the Selling Stockholder reasonably informed with respect thereto;
(pk) make all filings with, and obtain all consents of, state public utility commissions and similar regulatory bodies which may be reasonably necessary or advisable to enable the Selling Stockholder to consummate the disposition of the Registrable Shares;
(l) upon request, furnish to the Selling Stockholder a signed counterpart, addressed to the Selling Stockholder (and each underwriter, if any) of:
(i) an opinion or opinions of counsel to the Company, 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), reasonably satisfactory in form and substance to the Selling Stockholder (and such underwriter); 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 registered public accountants who have certified the Company’s financial statements included in such Registration Statement; in each case covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) and, in the case of the accountants’ letter, with respect to events subsequent to the date of such financial statements and other financial matters, as are customarily covered in opinions of issuer’s counsel and in accountants’ letters delivered to the underwriters in underwritten public offerings of securities;
(m) otherwise use its best all reasonable and diligent efforts to comply with all applicable rules and regulations of the SEC, Securities Laws and make generally available to its security holders, earnings statements as soon as reasonably practicable an earning statement satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period Act and Rule 158 promulgated thereunder;
(or 90 days, if such period is a fiscal yearn) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning cooperate with the first month Selling Stockholder and each underwriter or agent participating in the disposition of such Registrable Shares and their respective counsel in connection with any filings required to be made with the Company's first fiscal quarter commencing after the effective date National Association of the Registration StatementSecurities Dealers, which statements shall cover said 12-month periodsInc.; and
(qo) promptly and in any event prior (and, if practicable, at least 48 hours prior) to the filing of any document which is to be incorporated by reference into Registration Statement, the Registration Statement filing of any Prospectus or Issuer Free Writing Prospectus or the Prospectus (after initial filing of the any amendment of or supplement to such Registration Statement), provide copies Prospectus or Issuer Free Writing Prospectus, furnish a copy thereof to the Selling Stockholder and its legal counsel and refrain from filing any such Registration Statement, Prospectus, Issuer Free Writing Prospectus or amendment thereof or supplement thereto to which such 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 or the rules and regulations thereunder, unless, in the case of an amendment or supplement, in the opinion of counsel for the Company the filing of such document amendment or supplement is reasonably necessary to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to protect the Company from any liabilities under any applicable federal or state law and such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder filing will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicenot violate applicable laws.
Appears in 2 contracts
Samples: Registration Rights Agreement (American Water Works Company, Inc.), Registration Rights Agreement (American Water Capital Corp.)
Registration Procedures. In connection with Whenever the Company's registration obligations Offerors have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will use its reasonable best efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleexpeditiously:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause such Registration Statement to become effectiveand remain effective for a period of not less than three months; provided provided, that before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will furnish to the holders of counsel selected by the Registrable Securities covered by Offerors requesting such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriterscounsel before such filing is made, and the Company will not file comply with any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered reasonable request made by such Registration Statement counsel to make changes to the extent such documents do not comply in all material respects with the Securities Act or the underwriters, if any, shall reasonably objectsecurities laws of any other applicable jurisdiction;
(b) prepare and file with the SEC such amendments (including post effective amendments) and post-effective amendments supplements to such Registration Statement and the prospectus used in connection therewith, which documents will be subject to the Registration Statement review of such counsel before such filing is made, and the Company will comply with any reasonable request made by such counsel to make changes to the extent such documents do not comply in all material respects with the Securities Act or the securities laws of any other applicable jurisdiction, as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter a period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus of not less than three (3) months and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act and the securities laws of any other applicable jurisdiction with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(c) notify the furnish to each Holder selling holders of Registrable Securities such number of conformed copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits), the managing underwritersprospectus included in such Registration Statement (including each preliminary prospectus) and such other customary documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable each Holder selling Registrable Securities to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, if any, promptly, and (if requested by ii) subject itself to taxation in any such Personjurisdiction, or (iii) confirm consent to service of process except as required by the securities or blue sky laws in any such advice jurisdiction);
(e) use its reasonable best efforts to cause the Registrable Securities covered by such Registration Statement to be registered with, or approved by, such other public, governmental or regulatory authorities as may be necessary to facilitate the disposition of such Registrable Securities in writingaccordance with the intended methods of disposition;
(f) notify each Holder selling Registrable Securities, (1A) when the Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment has been filedfiled with the SEC, and, with respect to the such Registration Statement or any post-effective amendmentamendment thereto, when the same has become effectivebeen declared effective by the SEC, (2B) of any request by the SEC for amendments or supplements to the such Registration Statement or the Prospectus related prospectus, or for additional information, (3C) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purposesuch or a similar purpose (and the Company shall use its reasonable best efforts to obtain the withdrawal of any such order as soon as practicable), (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5D) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in of any jurisdiction or the initiation or threatening of any proceeding for such purpose (and the Company shall use its reasonable best efforts to obtain the withdrawal of any such suspension as soon as practicable), (6E) of the happening occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which that requires the making of any changes to such Registration Statement or related prospectus so that such documents 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 statement therein, in light of the Registration Statementcircumstances under which they were made, not misleading (and the Prospectus Company shall, promptly prepare and furnish to each Holder selling Registrable Securities a reasonable number of copies of a supplemented or any document incorporated amended prospectus such that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein therein, in light of the circumstances under which they are made, not misleading;
), and (dF) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at Company’s determination that the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or filing of a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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 (registration statement shall be necessary 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference)appropriate;
(g) deliver otherwise use its reasonable best efforts to each selling holder comply with all applicable rules and regulations of Registrable Securities and the underwriters, if any, without chargeSEC, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons same may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement theretohereafter be amended;
(h) prior use its reasonable best efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of cause all such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by such Registration Statement to be listed or quoted on the Registration Statement; provided that principal securities exchange or national automated quotation system on which similar securities issued by the Company will not be required to qualify generally to do business in any jurisdiction where it is are then listed or quoted or, if not then so qualified listed or quoted, use its reasonable best efforts to take any action which would subject it cause such Registrable Securities to general service of process in any such jurisdiction where it is not then so subjectbe listed on a national securities exchange or quoted on a national automated quotation system;
(i) provide a transfer agent and registrar for all such Registrable Securities covered by such Registration Statement not later than the effective date of such Registration Statement;
(j) cooperate with the each Holder 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 legendssold; and enable use its best efforts to cause the registrar and transfer agent for the Company to issue, upon request of such seller, certificates for such number of Registrable Securities to be in such denominations and registered in such names as the managing underwriters such seller may reasonably request at least two business three (3) days prior to any sale of Registrable Securities;
(k) in the event the offering is an underwritten offering, obtain a “cold comfort” letter from the independent public accountants for the Company, which accountants shall be of nationally recognized standing and shall have certified the Company’s financial statements included in the Registration Statement or any amendment thereto, in customary form and covering such matters of the type customarily covered by such letters;
(l) furnish, at the request of any Holder selling Registrable Securities on the date such securities are delivered to the underwriters for sale pursuant to such registration or, if such securities are not being sold through underwriters, on the date the Registration Statement with respect to such securities becomes effective, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal matters with respect to the registration in respect in which such opinion is being given as the underwriters, if any, and such seller may reasonably request and are customarily included in such opinions;
(jm) use its best efforts to cause enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the Holders of not less than a majority of the Registrable Securities covered by the applicable 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 being sold or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including effecting a stock split or a combination of shares and causing its officers and directors to participate in such connection, whether or not an underwriting agreement is entered into “road shows” and whether or not other informational meetings organized by the registration is an underwritten registration underwriters); and
(1n) make such representations upon execution and warranties to the holders delivery of such Registrable Securities and the underwriters, if any, in form, substance and scope customary confidentiality agreements as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwritersreasonably request, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the any Holder selling Registrable SecuritiesSecurities covered by such Registration Statement, any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney attorney, accountant or accountant other agent retained by the sellers any such seller or underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationRegistration Statement; provided that the Company shall not be required to make any records, such information or documents that are designated by records available in the Company in writing as confidential shall be kept confidential by such Persons unless disclosure event doing so would constitute a violation of such records, information or documents is required by court or administrative order;any applicable public securities law.
(po) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and The Company will make generally available to its security holderseach Holder proposing to sell Registrable Securities, as soon as reasonably practicable, an earnings statements satisfying statement (which need not be audited) for the provisions twelve 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 Section 11(a) of the Securities Act and Rule 158 thereunder; provided that, the Company shall not be required to make such statement available in the event doing so would constitute a violation of Regulation FD of the SEC or any other applicable public securities law.
(p) The Company will, at all times after the Company has filed a Registration Statement with the SEC pursuant to the requirements of the Securities Act, no later than 45 days after the end Exchange Act, or the securities laws of any 12-month period (other jurisdiction, file all reports required to be filed by it under the Securities Act, the Exchange Act, and the securities laws of such other jurisdiction and the rules and regulations adopted by the SEC thereunder, and take such further action as any Holder or 90 days, if such period is a fiscal year) (1) commencing at the end Holders of any fiscal quarter in which Registrable Securities are sold may reasonably request, all to underwriters in a firm the extent required to enable such holders to be eligible to sell Registrable Securities pursuant to (i) Rule 144 of the Securities Act, or best efforts underwritten offeringany similar rule or regulation hereafter adopted by the SEC, or (2ii) if not sold a Registration Statement on Form S-3 or F-3, as applicable, or any similar registration form hereafter adopted by the SEC. Upon request, the Company will deliver to underwriters Holders of Registrable Securities a written statement as to whether it has complied with such requirements. In connection with any transfer by any Holder of any Registrable Securities pursuant to Rule 144 of the Securities Act, the Company shall cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold, and enable certificates for such Registrable Securities to be for such number of shares and registered in such an offering, beginning with names as the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
Holder may reasonably request in writing at least three (q3) promptly days prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition transfer of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceSecurities.
Appears in 2 contracts
Samples: Shareholder Agreement, Shareholders Agreement (Xinyuan Real Estate Co LTD)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, If and whenever the Company will is required by the provisions of this Warrant to use its best efforts to effect such the registration to permit of any of the sale of such Registrable Shares under the Securities in accordance with the intended method or methods of distribution thereofAct, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with furnish to the SEC, Registered Holder such number of copies as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form Registered Holder shall be available for the sale reasonably request of the Registrable Securities in accordance with the intended method or methods of distribution thereof prospectus, including a preliminary prospectus and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, in conformity with the Company will furnish to the holders requirements of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectAct;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause register or qualify the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities Shares covered by the Registration Statement to be listed on each under the securities exchange on which similar securities issued by laws of such states as the Registered Holder shall reasonably request; provided, however, that the Company are then listed shall not be required in connection with this subsection 20(b) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(c) promptly notify the Registered Holder, if the Company has delivered preliminary or final prospectuses to the Registered Holder and after having done so, the prospectus is amended to comply with the requirements of the Securities Act and, if requested by the holders Company, the Registered Holder shall immediately cease making offers or sales of a majority Registrable Shares under the Registration Statement and return all prospectuses to the Company. The Company shall promptly provide the Registered Holder with revised prospectuses and, following receipt of such the revised prospectuses, the Registered Holder shall be free to resume making offers and sales of the Registrable Securities or the managing underwriters, if any;Shares; and
(md) not later than pay the effective date expenses incurred by it in complying with its obligations under this Warrant in connection with registration rights, including all registration and filing fees, exchange listing fees, expenses for the preparation of the Registration Statement, provide a CUSIP number for all Registrable Securities prospectus and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) any amendments and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities supplements thereto, printing and in such connectionphotocopy expenses, whether or not an underwriting agreement is entered into fees and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions expenses of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause fees and expenses of accountants for the Company's officers, directors and employees to supply all information reasonably requested but excluding: (i) selling commissions or underwriting discounts incurred by any such representative, underwriter, attorney or accountant the Registered Holder in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure sales of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into Shares under the Registration Statement or and (ii) the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities fees and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt expenses of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") counsel retained by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceRegistered Holder.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Igi Inc), Common Stock Purchase Warrant (Igi Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant (a) If and whenever LPL is required to Section 3 hereof, the Company will use its reasonable best efforts to effect such registration to permit or cause the sale Registration of such Registrable Securities under the Securities Act as provided in accordance with this ARTICLE IV, LPL shall, subject to the intended method or methods terms of distribution thereofthis Agreement, and pursuant thereto the Company will as expeditiously soon as possiblepracticable:
(ai) prepare and file with the SEC, as soon as practicable, a SEC the requisite Registration Statement or Registration Statements on any appropriate form with respect to such Registrable Securities (including all exhibits and financial statements required under the Securities Act, which form shall be available for ) and use its reasonable best efforts to cause such Registration Statement to become and remain effective in order to permit the sale of the Registrable Securities by the Stockholders in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist described in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectStatement;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and Prospectus as may be necessary to keep the such Registration Statement effective for the applicable during such period, or such shorter period which will terminate when all reasonably requested by holders of the participating Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and Securities;
(iii) comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities covered by such Registration Statement during such period and all stock exchange or trading system or FINRA registration, listing or filing requirements;
(iv) furnish to each Stockholder holding such Registrable Securities and each underwriter such number of copies of such Registration Statement and of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth Prospectus included in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result (including each preliminary prospectus and summary prospectus), in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies conformity with the requirements of Section 6(k)the Securities Act, if applicableand such other documents as such Stockholder or underwriter may reasonably request;
(cv) (i) promptly notify the selling holders of in writing each Stockholder that holds Registrable Securities and the managing underwriterscovered by such Registration Statement (and, if anyrequested, promptlyprovide copies of the relevant documents, and as soon as reasonably practicable), (if requested by A) upon the filing of any such Person) confirm such advice in writing, Registration Statement or amendment or supplement thereto (1) when the Prospectus or any Prospectus supplement or including post-effective amendment has been filed, and, with respect to the amendments) and when such Registration Statement or any post-effective amendment, when the same has become amendment or supplement thereto becomes effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3B) of the issuance by the Commission SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of the such Registration Statement (and take all reasonable action to prevent the entry of such stop order or to remove it if entered, or the initiation of any proceedings for that purpose), (4C) if if, at any time time, the representations and warranties of the Company contemplated by paragraph (o) below LPL in any applicable underwriting agreement cease to be true and correctcorrect in all material respects, or (5) 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 and (6D) of the happening of any event as a result of which makes any statement made in the Registration Statement, as then in effect, or the Prospectus related thereto or any document incorporated included therein by reference includes an untrue statement of a material fact or which requires the making of any changes in the Registration Statement, the Prospectus omits to state a material fact required to be stated therein or any document incorporated therein by reference in order necessary to make the statements therein (in the case of such Prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleadingmisleading and (ii) in the case of an event under clause (v)(i)(B) or (D), promptly file such amendments and supplements which may be required on account of such event and use its reasonable best efforts to cause each such amendment and supplement to become effective;
(dvi) make every promptly furnish counsel for each underwriter, if any, and for the selling Stockholders of Registrable Securities copies of any written request by the SEC (including any written comments from the SEC on such Registration Statement) or any state securities authority for amendments or supplements to a Registration Statement and Prospectus or for additional information;
(vii) use reasonable effort best efforts to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible momenttime;
(eviii) use reasonable best efforts to cause all such Registrable Securities covered by such Registration Statement to be listed on the principal securities exchange or authorized for quotation on Nasdaq, if requested any, on which similar equity securities issued by LPL are then listed or authorized for quotation, or eligible for listing or quotation, if the managing listing or authorization for quotation of such securities is then permitted under the rules of such exchange or the FINRA;
(ix) enter into an underwriting agreement with the underwriter or underwriters or a holder of such offering in the form customary for such underwriter for similar offerings, including such representations and warranties by LPL, provisions regarding the delivery of opinions of counsel for LPL and accountants’ letters, provisions regarding indemnification and contribution, and such other terms and conditions as are at the time customarily contained in such underwriter’s underwriting agreements for similar offerings (the sellers of Registrable Securities being sold in connection with an underwritten offeringthat are to be distributed by such underwriter(s) may, promptly incorporate in a Prospectus supplement at their option, require that any or post-effective amendment such information as all of the managing underwriters representations and warranties by, and the holders other agreements on the part of, LPL to and for the benefit of a majority such underwriter(s) shall also be made to and for the benefit of the Registrable Securities being sold agree should be included therein relating to the plan such sellers of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gx) deliver make available upon reasonable notice at reasonable times and for reasonable periods for inspection by representatives of the selling Stockholders who hold Registrable Securities and any underwriters participating in any disposition pursuant hereto and by any attorney, accountant or other agent retained by any selling Stockholder or any underwriters, all pertinent financial and other records, pertinent corporate documents and properties of LPL, and cause all of LPL’s officers, directors and employees and the independent public accountants who have certified the its financial statements to make themselves available to discuss the business of LPL and to supply all information reasonably requested by any such selling Stockholders, underwriters, attorneys, accountants or agents in connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility (subject to entry by each selling holder such representative, counsel or accountant into customary confidentiality agreements in a form reasonably acceptable to LPL);
(xi) permit any Beneficial Owner of Registrable Securities who, in the sole judgment, exercised in good faith, of such Stockholder, with the advice of outside legal counsel, might be deemed to be a controlling Person of LPL, to participate in the preparation of such registration or comparable statement and to require the underwritersinsertion therein of material, if anyfurnished to LPL in writing, without chargethat in the reasonable judgment of such Stockholder, with the advice of outside legal counsel, as many copies of the Prospectus (including each preliminary prospectus) and any amendment aforesaid, should be included to comply with applicable federal, state or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement theretolocal securities laws;
(hxii) on or prior to any public offering of Registrable Securitiesthe date on which the applicable Registration Statement is declared effective, use its reasonable best efforts to register or qualify or qualify, and cooperate with the selling holders of Registrable Securities, the managing underwriter or underwriters, if any, and their respective counsel counsel, in connection with the registration Registration or qualification of such Registrable Securities for offer and sale under the securities or “blue sky sky” laws of such jurisdictions each state and other jurisdiction of the United States as any seller such selling Stockholder or managing underwriter or underwriters, if any, or their respective counsel reasonably requests request in writing and do any and all other acts or things reasonably necessary or advisable to enable the disposition keep such registration or qualification in such jurisdictions of the Registrable Securities covered by the Registration Statement; effect, provided that the Company will LPL shall 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 taxation or general service of process in any such jurisdiction where it is not then so subject;
(ixiii) cooperate with the selling holders Stockholders of Registrable Securities and the managing underwriter or 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 managing underwriters may request at least two business days Business Days prior to any sale of Registrable Securities to the underwriters;
(jxiv) use its reasonable best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities (other than any foreign governmental agencies or authorities) as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(mxv) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary The Depository Trust Company;
(nxvi) enter into such customary agreements (including an underwriting agreementand indemnification agreements) and take all such other actions in connection therewith as the holders of at least a majority of any Registrable Securities being sold or the managing underwriter or underwriters, if any, reasonably request in order to expedite or facilitate the Registration and disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Securities;
(1xvii) make such representations and warranties obtain for delivery to the holders selling Stockholders of such Registrable Securities and to the underwriter or underwriters, if any, in forman opinion or opinions from counsel for LPL dated the effective date of the Registration Statement or, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions event of counsel to an underwritten offering, the Company and updates thereof (which counsel and opinions (date of the closing under the underwriting agreement, in customary form, scope and substance) , which opinions shall be reasonably satisfactory to such holders or underwriters, as the managing case may be, and their respective counsel;
(xviii) promptly incorporate in a supplement to the Prospectus or post-effective amendment to the Registration Statement such information as the lead underwriter or underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of Stockholders holding a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall agree should be done at each closing under such underwriting or similar agreement or as and included therein relating to the extent plan of distribution with respect to such class of Registrable Securities; and make all required thereunderfilings of such supplement or post-effective amendment as promptly as reasonably practicable after being notified of the matters to be incorporated in such supplement or post-effective amendment;
(oxix) make available for inspection by a representative in the case of any Marketed Underwritten Shelf Take-Down or Demand Registration, cause the holders senior executive officers of a majority of the Registrable Securities, any underwriter participating LPL to participate in any disposition pursuant customary “road show” presentations and otherwise to such registrationfacilitate, cooperate with and any attorney or accountant retained by the sellers or underwriterparticipate in each proposed offering contemplated herein and customary selling efforts related thereto, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information in each case as reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure underwriters and taking into account the needs of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules LPL’s business and regulations the requirements of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodsmarketing process; and
(qxx) promptly prior to in the filing case of any document which is Non-Marketed Underwritten Shelf Take-Down, cause the senior executive officers of LPL to be incorporated participate in any customary presentations and otherwise to facilitate, cooperate with and participate in each proposed offering contemplated herein and customary selling efforts related thereto, in each case as reasonably requested by reference the underwriters and taking into account the Registration Statement or needs of LPL’s business and the Prospectus (after initial filing requirements of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company marketing process.
(b) LPL may require each seller of Stockholder who is selling Registrable Securities as pursuant to which any registration Registration is being effected to furnish to the Company LPL such information regarding such Stockholder and the distribution of such securities Registrable Securities as the Company LPL may from time to time reasonably request in writing. .
(c) Each holder Stockholder who is selling Registrable Securities shall cooperate with the underwriters by entering into any undertakings and taking such other actions relating to the conduct of the proposed offering which the underwriters may reasonably request to insure compliance with federal and state securities laws and the rules and requirements of FINRA or which are otherwise customary and which the underwriters may request to effectuate an offering or file a Registration Statement.
(d) Each Beneficial Owner of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company LPL of the happening of any event of the kind described in Section 6(k4.9(a)(v)(i)(B) hereofand Section 4.9(a)(v)(i)(D), such holder Beneficial Owner will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement covering such Registrable Securities until such holder's Beneficial Owners’ receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof4.9(a)(v)(ii), or until it such Stockholder is advised in writing (the "Advice") by the Company LPL that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the CompanyLPL, such holder will Beneficial Owner shall deliver to the Company LPL (at the Company's LPL’s expense) all copies, other than permanent file copies then in such holder's Beneficial Owner’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of that was in effect prior to such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented amendment or amended prospectus contemplated by Section 6(k) hereof or the Advicesupplement.
Appears in 2 contracts
Samples: Stockholders Agreement (LPL Investment Holdings Inc.), Stockholders Agreement (LPL Investment Holdings Inc.)
Registration Procedures. In connection with Whenever the Company's registration obligations holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will Corporation shall use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Corporation shall as expeditiously as possible:
(a) A. prepare and file with the SEC, as soon as practicable, SEC a Registration Statement on a form for which the Corporation then qualifies which is satisfactory to the Corporation and the holders of a majority of the Registrable Securities being registered (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or Registration Statements on any appropriate underwriters shall determine the form under the Securities Act, to be used) and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its best efforts to cause such Registration Statement to become be come effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) B. prepare and file with the SEC such amendments and post-post- effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable perioda period of not less than six months, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldsold or withdrawn; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) C. notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, ,
(1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, ;
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, ; and
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iii) of the receipt by the Company 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;purpose.
(d) D. make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) E. if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringsold, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree and their respective counsel reasonably conclude should be included therein relating in the Registration Statement, so that such Registration Statement conforms in both form and substance to the plan requirements of distribution with respect to such Registrable Securitiesthe Securities Act, including, including without limitation, information limitation with respect to the number 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;
F. promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy after initial filing of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gStatement) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many provide copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents document to the use of the Prospectus or any amendment or supplement thereto by each of counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, in connection with and make the offering and sale Corporation's representatives available for discussion of the Registrable Securities covered by the Prospectus or any amendment or supplement theretosuch document;
(h) G. prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided provided, however, that the Company will Corporation shall 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) I. upon the occurrence happening of any event contemplated which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by paragraph (c)(6) abovereference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will 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;
(l) J. cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company Corporation are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) K. provide a transfer agent and registrar for all Registrable Securities and a CUSIP number for all Registrable Securities, in each case not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(n) L. enter into such agreements (including an underwriting agreementagreement satisfactory to the Corporation, containing customary representations, warranties and agreements) and take all such other actions in connection therewith in order reasonably to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration:
(1i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in such form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; offerings;
(2ii) obtain opinions of counsel to the Company Corporation and updates thereof (which counsel and opinions (opinions, in form, scope and substance) , shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; ;
(3iii) obtain "cold comfort" letters and updates thereof from the CompanyCorporation's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by to underwriters in connection with primary underwritten offerings; and
(4iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (ki) above of this Paragraph K and with any customary conditions contained in the underwriting agreement or other agreement entered into by the CompanyCorporation. The obligations under this Paragraph L above shall be done performed at each closing under such underwriting or similar agreement or as and to the extent required thereunder;.
(o) M. make available for inspection by a representative of the holders sellers of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationregistration statement, and any attorney attorney, accountant or accountant other agent retained by the sellers or underwriterunderwriters, all financial and other records, pertinent corporate documents and properties of the CompanyCorporation, and cause the CompanyCorporation's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney attorney, accountant or accountant agent solely for use in connection with such registrationregistration statement; provided provided, however, that any records, information or documents that are designated by the Company Corporation in writing as confidential shall be kept confidential by such Persons unless disclosure of pursuant to such records, information or documents is required by court or administrative orderreasonable confidentiality agreements as the Corporation may request;
(p) N. otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12twelve-month period (or 90 days, if such period is a fiscal year) ): (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts an underwritten offering, or (2) or, if not sold to underwriters in such an offering, ; and (ii) beginning with the first month of the CompanyCorporation's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12twelve-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Registration Rights Agreement (Systems Holding Inc), Registration Rights Agreement (Electronic Retailing Systems International Inc)
Registration Procedures. In connection with the Company's registration obligations Registration to be effected pursuant to Section 3 hereofthe Resale Registration Statement, and whenever the Holder has requested that any Registrable Securities be registered pursuant to this Agreement, the Company will shall use its best commercially reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as reasonably possible:
(a) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities ActStatement, which form shall and all amendments and supplements thereto and related prospectuses as may be available for the sale of the necessary to comply with applicable securities laws, with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best commercially reasonable efforts to cause such Registration Statement to become effective; effective (provided that at least five (5) Business Days before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will shall furnish to counsel selected by the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, Holder copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comment of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectcounsel);
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders Holder of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such PersonA) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the any Registration Statement or the initiation of any proceedings for that purpose, (4B) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company or its counsel 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 purpose, and (6C) the effectiveness of each Registration Statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or have ceased to be Registrable Securities;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus), and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(f), (ii) consent to general service of process in any such jurisdiction, or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such Registration Statement and each post-effective amendment thereto has become effective or a prospectus or supplement to any prospectus relating to a Registration Statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) after receipt thereof, of any request by the Commission for the amendment or supplementing of such Registration Statement or prospectus or for additional information, and (iii) at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which makes the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any statement made in fact necessary to make the Registration Statementstatements therein not misleading, and, at the request of any such seller, the Prospectus Company promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus shall not contain an untrue statement of a material fact or omit to state any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order fact necessary to make the statements therein not misleading;
(dh) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on a securities exchange 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 FINRA;
(i) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(j) enter into and perform such customary agreements and take all such other actions as the Holder or placement agent reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, effecting a stock split or a combination of shares and preparing for and participating in such number of “road shows”, investor presentations and marketing events as the underwriters managing such offering may reasonably request);
(k) make every available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition 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 and business documents and properties of the Company as shall be necessary to enable them to exercise their due diligence responsibility, and cause the Company’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent in connection with such Registration Statement;
(l) otherwise comply with all applicable rules and regulations of the Commission;
(m) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use 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 commercially reasonable effort efforts promptly to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momentsuch order;
(en) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment use its commercially reasonable efforts to cause such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(ko) upon cooperate with the occurrence Holder and the placement agent, if any, to facilitate the timely preparation and delivery of certificates (not bearing any event contemplated by paragraph (c)(6restrictive legends) above, prepare a supplement or posteffective amendment representing securities to be sold under the Registration Statement and enable such securities to be in such denominations and registered in such names as the placement agent or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleadingHolder may request;
(lp) cause all Registrable Securities cooperate with the Holder covered by the Registration Statement to be listed on and each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities underwriter or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are agent participating in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA; and
(q) provide a legal opinion of the Company’s outside counsel, dated the effective date of such connectionRegistration Statement (and, whether or not an underwriting agreement is entered into and whether or not the registration is if such Registration includes an underwritten registration (1) make such representations and warranties Public Offering, dated the date of the closing under the underwriting agreement), with respect to the holders of such Registrable Securities Registration Statement, each amendment and supplement thereto, the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in prospectus included therein (including the Purchase Agreement; (2preliminary prospectus) 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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be documents relating thereto in customary form and covering such matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered intolegal opinions of such nature, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above which opinion shall be done at each closing under such underwriting or similar agreement or as and addressed to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Registration Rights Agreement (Maison Solutions Inc.), Securities Purchase Agreement (Maison Solutions Inc.)
Registration Procedures. In connection with the Company's registration obligations Whenever any Registrable Securities are to be registered pursuant to Section 3 Article VIII hereof, the Company will will, at its expense, use its best efforts to effect such the registration to permit and the sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution thereofdisposition thereof as quickly as practicable, and pursuant thereto in connection with any such request, the Company will as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements registration statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate form under the Securities Act, and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its best efforts and proceed diligently and in good faith to cause such Registration Statement filed registration statement to become effectiveeffective under the Securities Act; provided that before filing a Registration Statement registration statement or Prospectus prospectus or any amendments or supplements thereto, the Company will furnish to all Selling Holders and to one counsel reasonably acceptable to the holders of Company selected by the Registrable Securities covered by such Registration Statement and the underwriters, if anySelling Holders, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriterscounsel, and the Company will pay the reasonable fees of such counsel; provided, that in connection with a Demand Registration, the Company shall not file any Registration Statement registration statement or amendment thereto prospectus, or any Prospectus amendments or any supplement thereto to which supplements thereto, if the holders of Demand Holders who hold a majority of the Registrable Securities covered by such Registration Statement registration statement, their counsel, or the underwriters, if any, managing Underwriters shall reasonably object, in writing, on a timely basis;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for a period (except as provided in the applicable periodlast paragraph of this Article VIII) of not less than 270 consecutive days or, or such shorter if shorter, the period which will terminate terminating when all Registrable Securities covered by such Registration Statement registration statement have been sold; cause sold (but not before the Prospectus expiration of the applicable period referred to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under in Section 4(3) of the Securities Act; Act and Rule 174 thereunder, if applicable) and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers Selling Holders thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableregistration statement;
(c) furnish to each such Selling Holder such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto), the prospectus included in such registration statement (including each preliminary prospectus) and such other documents as such Selling Holder may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Selling Holder;
(d) notify the selling holders of Registrable Securities and the managing underwriters, if any, Selling Holders promptly, and (if requested by any such Person) confirm such advice notice in writing, (1i) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement a registration statement or any post-effective amendment, when the same has become effectiveeffective under the Securities Act and each applicable state law, (2ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement a registration statement or the Prospectus related prospectus or for additional information, (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement a registration statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6v) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus such registration statement or related prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in such registration statement, prospectus or documents so that, in the Registration Statementcase of the registration statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading, and that in the case of the prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading and (vi) of the Company's reasonable determination that a post-effective amendment to a registration statement would be appropriate;
(de) make every reasonable effort use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a registration statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;
qualification (eor exemption from qualification) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority any of the Registrable Securities being sold agree should be included therein relating to for sale in any jurisdiction, at the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number 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 amendmentearliest practicable moment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities Selling Holders and the managing underwriters, if any, Underwriter or Underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and sold, which certificates shall not bearing bear any restrictive legendslegends and shall be in a form eligible for deposit with The Depositary Trust Company; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters Underwriter or Underwriters may request at least two 2 business days prior to any sale of Registrable Securities to the underwritersSecurities;
(jg) use its best efforts to register or qualify such Registrable Securities as promptly as practicable under such other securities or blue sky laws of such jurisdictions as any Selling Holder or managing Underwriter reasonably (in light of the intended plan of distribution) requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such Selling Holder or managing Underwriter to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Selling Holder; provided that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph (g), (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction;
(h) use its best efforts to cause the such Registrable Securities covered by the applicable 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 seller Selling Holder or sellers Selling Holders thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(i) enter into customary agreements (including an underwriting agreement in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities;
(j) make available for inspection by any Selling Holder of such Registrable Securities, any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other professional retained, and paid, by any such Selling Holder or Underwriter (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such Inspectors in connection with such registration statement. Records which the Company determines, in good faith, to be confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction. Each Selling Holder of such Registrable Securities agrees that information obtained by it as a result of such inspections shall be deemed confidential and shall not be used by it as the basis for any market transactions in the securities of the Company or its Affiliates unless and until such is made generally available to the public. Each Selling Holder of such Registrable Securities further agrees that it will, as soon as practicable upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and allow the Company at its expense to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(k) upon use its best efforts to obtain a comfort letter or comfort letters from the occurrence Company's independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters as the Selling Holders of a majority of the shares of Registrable Securities being sold or the managing Underwriter or Underwriters reasonably requests;
(l) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering a period of 12 months, beginning within 3 months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 11
(a) of the Securities Act;
(m) use its best efforts to cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed or quoted on any inter-dealer quotation system on which similar securities issued by the Company are then quoted;
(n) if any event contemplated by paragraph (c)(6d)(v) aboveabove shall occur, as promptly as practicable prepare a supplement or posteffective amendment or post-effective amendment to the Registration Statement such registration statement or the related Prospectus prospectus or any document incorporated therein by reference or promptly file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;
(lo) cause all Registrable Securities covered by the Registration Statement cooperate and assist in any filing required to be listed on each securities exchange on which similar securities issued by made with the Company are then listed if requested by the holders National Association of a majority of such Registrable Securities or the managing underwritersDealers, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities Inc. and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders performance of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made any due diligence investigation by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by including any such representative, "qualified independent underwriter, attorney ," or accountant in connection with such registrationany Selling Holder; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;and
(p) otherwise use its best efforts to comply cooperate fully with all applicable rules the marketing and regulations sale of securities in accordance with this Agreement including, without limitation, providing marketing support and causing the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(aappropriate member(s) of management to participate in "road show" presentations and attend meetings with Underwriters as requested by the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement Parties or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestUnderwriters. The Company may require each seller of Registrable Securities as Selling Holder to which any registration is being effected to promptly furnish in writing to the Company such information regarding the distribution of such securities the Registrable Securities as the Company it may from time to time reasonably request and such other information as may be legally required in writingconnection with such registration. Notwithstanding anything herein to the contrary, the Company shall have the right to exclude from any offering the Registrable Securities of any Selling Holder who does not comply with the provisions of the immediately preceding sentence. Each holder of Registrable Securities Selling Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(kparagraph (d)(v) hereofabove, such holder Selling Holder will forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such holderSelling Holder's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 6(kparagraph (d)(v) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectusabove, and, if so directed by the Company, such holder Selling Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies copies, then in such holderSelling Holder's possession, of the Prospectus most recent prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding Company shall extend the maintenance of period during which such Registration Statement registration statement shall be extended maintained effective by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6paragraph (d)(v) hereof above to and including the date when each seller the Company shall make available to the Selling Holders of Registrable Securities covered by such Registration Statement shall have received the copies of the registration statement a prospectus supplemented or amended prospectus contemplated by Section 6(kto conform with the requirements of paragraph (d)(v) hereof or the Adviceabove.
Appears in 2 contracts
Samples: Stockholders Agreement (Aki Inc), Stockholders Agreement (Aki Holding Corp)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, If and whenever the Company will is required by ----------------------- the provisions of this Warrant to use its best efforts to effect such the registration to permit of any of the sale of such Registrable Shares under the Securities in accordance with the intended method or methods of distribution thereofAct, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with furnish to the SEC, Registered Holder such number of copies as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form Registered Holder shall be available for the sale reasonably request of the Registrable Securities in accordance with the intended method or methods of distribution thereof prospectus, including a preliminary prospectus and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, in conformity with the Company will furnish to the holders requirements of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectAct;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause register or qualify the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities Shares covered by the Registration Statement to be listed on each under the securities exchange on which similar securities issued by laws of such states as the Registered Holder shall reasonably request; provided, however, that the Company are then listed -------- ------- shall not be required in connection with this subsection 20(b) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(c) promptly notify the Registered Holder, if the Company has delivered preliminary or final prospectuses to the Registered Holder and after having done so, the prospectus is amended to comply with the requirements of the Securities Act and, if requested by the holders Company, the Registered Holder shall immediately cease making offers or sales of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of Shares under the Registration Statement, provide a CUSIP number for Statement and return all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order prospectuses to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above Company shall promptly provide the Registered Holder with revised prospectuses and, following receipt of the revised prospectuses, the Registered Holder shall be done at each closing under such underwriting or similar agreement or as free to resume making offers and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority sales of the Registrable SecuritiesShares; and
(d) pay the expenses incurred by it in complying with its obligations under this Warrant in connection with registration rights, any underwriter participating in any disposition pursuant to such registrationincluding all registration and filing fees, exchange listing fees, expenses for the preparation of the Registration statement, prospectus and any attorney or accountant retained by the sellers or underwriteramendments and supplements thereto, all financial printing and other recordsphotocopy expenses, pertinent corporate documents fees and properties expenses of counsel for the Company, and cause fees and expenses of accountants for the Company's officers, directors and employees to supply all information reasonably requested but excluding: (i) selling commissions or underwriting discounts incurred by any such representative, underwriter, attorney or accountant the Registered Holder in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure sales of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into Shares under the Registration Statement or and (ii) the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities fees and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt expenses of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") counsel retained by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceRegistered Holder.
Appears in 2 contracts
Samples: Common Stock Purchase Warrant (Igi Inc), Common Stock Purchase Warrant (Igi Inc)
Registration Procedures. In connection with the Company's ’s registration obligations pursuant to Section 3 hereof, the Company company will use its best efforts to effect such registration registrations to permit the sale of such the Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements relating to the applicable registration on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of the Registration Statement, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriter or underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority of the aggregate principal amount of Registrable Securities covered by such Registration registration Statement or the underwriter or underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such pre-effective amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed with the SEC pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of to the Registration Statement or for the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (65) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters and the holders of a majority of the aggregate principal amount of Registrable Securities being sold agree should be included therein relating to the plan sale of distribution with respect to such the Registrable Securities, including, without limitation, information with respect to the number principal amount of Registrable Securities being sold to such underwriter or underwriters, the purchase price First Purchase Price and Loan Amount being paid therefor by such underwriter or 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwritersto each underwriter, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities securities and the underwriterseach underwriter, if any, in connection with the offering and sale of the Registrable registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriter or underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided provided, however, that the Company 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 in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and sold, which certificates shall not bearing bear any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriter or underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriter or underwriters, if any, to consummate the disposition of or such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(65)(c)(5) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers Note Holders of the Registrable 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 not misleading;
(l) use its best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of the aggregate principal amount of such Registrable Securities or the managing underwriter or underwriters, if any;
(m) provide a CUSIP number for all Registrable Securities, not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such customary agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an a best efforts underwritten registration offering to (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriter or underwriters, if any, and the holders of a majority of the aggregate principal amount of Registrable Securities being sold) addressed to each selling holder and the underwriter or underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; and (32) obtain "“cold comfort" ” letters and updates thereof from the Company's ’s independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriter or underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "“cold comfort" ” letters received by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;.
(o) make available for inspection by a representative of the holders of a majority of the aggregate principal amount of Registrable Securities, any underwriter participating in any disposition pursuant to any such registrationRegistration Statement, and any attorney or accountant retained by the sellers or underwriterunderwriters, if any, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's company’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with any such registrationRegistration Statement; provided provided, however, that any non-public records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to an underwriter or underwriters in a firm or best efforts underwritten offering, or (2) if not sold to an underwriter or underwriters in such an offering, beginning with the first month of the Company's company’s first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected affected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k5(c)(3) or 5(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's ’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k5(c)(3) or 5(k) hereof, or until it is advised in writing (the "“Advice"”) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, and if so directed by the Company, such holder will deliver to the Company (at the Company's ’s expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such the effectiveness of Registration Statement filed pursuant to Section 3 hereof shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(65(c)(3) or 5(c)(5) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus Prospectus contemplated by Section 6(k5(k) hereof or the Advice. If for any other reason the effectiveness of any Registration Statement filed pursuant to Section 3 hereof is suspended or interrupted prior to the expiration of the time period regarding the maintenance of the effectiveness of such Registration Statement required by such Section 3 so that Registrable Securities may not be sold pursuant thereto, the applicable time periods shall be extended by the number of days equal to the number of days during the period beginning with and including the date of such suspension or interruption to and including the date when the sale of Registrable Securities pursuant to such Registration Statement may be recommenced.
Appears in 2 contracts
Samples: Registration Rights Agreement (Neutra Corp.), Registration Rights Agreement (Aristocrat Group Corp.)
Registration Procedures. In connection with If the Company's Companies and the Guarantors file a registration obligations statement pursuant to Section 3 hereof2(a) or Section 2(b), the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possiblefollowing provisions shall apply:
(a) At or before the Effective Time of the Shelf Registration or Exchange Registration, as the case may be, the relevant Company shall qualify the relevant Indenture under the Trust Indenture Act of 1939.
(b) In the event that such qualification would require the appointment of a new trustee under the relevant Indenture, the relevant Company shall appoint a new trustee thereunder pursuant to the applicable provisions of the relevant Indenture.
(c) In connection with the Companies’ and the Guarantors’ obligations with respect to the Shelf Registration, if applicable, the Companies and the Guarantors shall:
(i) use their commercially reasonable efforts to prepare and file with the SECCommission, as soon as practicablewithin the time period specified in Section 2(a), a Shelf Registration Statement or Registration Statements on any appropriate form under which may be utilized by the Securities Act, Companies and which form shall be available for the sale register all of the Registrable Securities for resale by Affiliated Market Makers and holders thereof in accordance with the intended such method or methods of distribution thereof disposition as may be specified by such Affiliated Market Makers and shall include all financial statements required by such of the SEC holders as, from time to time, may be filed therewith, cooperate Electing Holders and assist in any filings required to be made with the NASD, and use best efforts to cause such Shelf Registration Statement to become effective; provided that before filing a effective within the time period specified in Section 2(a);
(ii) not less than 30 calendar days prior to the Effective Time of the Shelf Registration Statement or Prospectus or any amendments or supplements theretoStatement, mail the Company will furnish Notice and Questionnaire to the holders of Registrable Securities; no holder shall be entitled to be named as a selling securityholder in the Shelf Registration Statement as of the Effective Time, and no holder shall be entitled to use the prospectus forming a part thereof for resales of Registrable Securities covered by at any time, unless such Registration Statement holder has returned a completed and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject signed Notice and Questionnaire to the reasonable review Companies by the deadline for response set forth therein; provided, however, holders of Registrable Securities shall have at least 28 calendar days from the date on which the Notice and Questionnaire is first mailed to such holders to return a completed and underwriterssigned Notice and Questionnaire to the Companies;
(iii) after the Effective Time of the Shelf Registration Statement, upon the request of any holder of Registrable Securities that is not then an Electing Holder, promptly send a Notice and Questionnaire to such holder; provided that the Company will Companies shall not file be required (A) to take any action to name such holder as a selling securityholder in the Shelf Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which enable such holder to use the holders prospectus forming a part thereof for resales of a majority of the Registrable Securities covered by until such holder has returned a completed and signed Notice and Questionnaire to the Companies and (B) nothing in this clause (iii) shall require the Companies or the Guarantors to file more than one post-effective amendment to the Shelf Registration Statement or the underwriters, if any, shall reasonably objectin any 45-day period;
(biv) as soon as practicable prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the such Shelf Registration Statement and the prospectus included therein as may be necessary to keep effect and maintain the effectiveness of such Shelf Registration Statement effective for the period specified in Section 2(a) hereof and as may be required by the applicable period, or rules and regulations of the Commission and the instructions applicable to the form of such shorter period which will terminate when all Registrable Securities covered by such Shelf Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplementStatement, and as so supplemented furnish to be the Electing Holders and any Affiliated Market Makers copies of any such supplement or amendment simultaneously with or prior to its being used or filed pursuant to Rule 424 under with the Securities Act; and Commission;
(v) comply with the provisions of the Securities Act with respect to the disposition of all securities of the Registrable Securities covered by such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers Electing Holders and any Affiliated Market Makers provided for in such Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the Affiliated Market Makers, (C) the underwriters (which term, for purposes of this Exchange and Registration Rights Agreement, shall include a person deemed to be an underwriter within the meaning of Section 2(a)(11) of the Securities Act), if any, thereof, (D) any sales or placement agent therefor, (E) counsel for any such underwriter or agent and (F) not more than one counsel for all the Electing Holders the opportunity to review and comment on such Shelf Registration Statement, each prospectus included therein or filed with the Commission and each amendment or supplement thereto prior to the filing thereof with the Commission;
(vii) for a reasonable period prior to the filing of such Shelf Registration Statement, and throughout the period specified in Section 2(a), make available at reasonable times at the Companies’ principal place of business or such other reasonable place for inspection by the persons referred to in Section 3(c)(vi) who shall certify to the Companies that they have a current intention to sell the Registrable Securities pursuant to the Shelf Registration such financial and other information and books and records of the Companies, and cause the officers, employees, counsel and independent certified public accountants of the Companies to respond to such inquiries, as shall be reasonably necessary, in the judgment of the respective counsel referred to in such Section, to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that each such party shall be required to maintain in confidence and not to disclose to any other person any information or records reasonably designated by the Companies 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 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 Companies prompt prior written notice of such requirement), or (C) such information is required to be set forth in such Shelf Registration Statement or the prospectus included therein or in an amendment to such Shelf Registration Statement or an amendment or supplement to such prospectus in order that such Shelf Registration Statement, prospectus, amendment or supplement, as the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the case may be, complies with applicable period if it voluntarily takes any action that would result in selling holders requirements of the Registrable Securities covered thereby federal securities laws and the rules and regulations of the Commission and does not being able contain an untrue statement of a material fact or omit to sell such Registrable Securities during that period unless such action is state therein a material fact required under applicable law, provided that to be stated therein or necessary to make the foregoing shall statements therein not apply to actions taken by misleading in light of the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablecircumstances then existing;
(cviii) promptly notify each of the selling holders Electing Holders, any Affiliated Market Makers, any sales or placement agent therefor and any underwriter thereof (which notification may be made through any managing underwriter that is a representative of Registrable Securities such underwriter for such purpose) and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1A) when such Shelf Registration Statement or the Prospectus prospectus included therein or any Prospectus prospectus amendment or supplement or post-effective amendment has been filed, and, with respect to the such Shelf Registration Statement or any post-effective amendment, when the same has become effective, (2B) of any comments by the Commission and by the blue sky or securities commissioner or regulator of any U.S. state with respect thereto, or any request by the SEC Commission for amendments or supplements to the or additional information relating to, such Shelf Registration Statement or the Prospectus or for additional informationprospectus, (3C) of the issuance by the Commission of any stop order suspending the effectiveness of the such Shelf Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 proceedings for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.purpose,
Appears in 2 contracts
Samples: Exchange and Registration Rights Agreement, Exchange and Registration Rights Agreement (Premdor Finace LLC)
Registration Procedures. In connection with the Company's obligations of CBC to effect or cause the registration obligations of any Registrable Securities pursuant to Section 3 hereofthe terms and conditions of this Agreement, the Company will CBC shall use its best reasonable efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possiblein connection therewith:
(a) CBC shall prepare and file with the SEC, as soon as practicable, Commission a Registration Statement on Form S-3 or Registration Statements on any appropriate other similar form under the Securities Act, Act which form shall be available for the sale permits secondary sales of the Registrable Securities securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, a "shelf registration," and use best reasonable efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, effective and remain effective in accordance with the Company will furnish to the holders provisions of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectthis Agreement;
(b) CBC shall promptly prepare and file with the SEC Commission such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep such Registration Statement effective and shall timely file with the Commission all required filings under the Exchange Act as are necessary to keep the Registration Statement effective for as long as such registration is required to remain effective pursuant to the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldterms hereof; shall cause the Prospectus to be supplemented by any required Prospectus supplement, and and, as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and shall comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities Registrable Securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof Holder set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify CBC shall promptly furnish to Holder such number of copies of the selling holders Prospectus (including each preliminary Prospectus) and any amendments or supplements thereto, as Holder may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities and the managing underwriters, if any, promptly, and being sold by Holder;
(if requested by any such Persond) confirm such advice in writingCBC shall promptly notify Holder, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, filed and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC Commission or any state securities authority for amendments or and supplements to the a Registration Statement or the and Prospectus or for additional informationinformation after the Registration Statement has become effective, (3iii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purposeStatement, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt issuance by the Company any state securities commission or other regulatory authority of any notification with respect to the suspension of order suspending the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction under state securities or the initiation or threatening of any proceeding for such purpose "blue sky" laws, and (6v) of the happening of any event which makes any statement made in the a Registration Statement, the Statement or related Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus that they will not contain an any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
. As soon as practicable following expiration of the Suspension Period (l) cause all Registrable Securities covered by as defined below), CBC shall prepare and file with the Registration Statement Commission and furnish a supplement or amendment to be listed on each securities exchange on which similar securities issued by such Prospectus so that, as thereafter deliverable to the Company are then listed if requested by the holders of a majority purchasers of such Registrable Securities Securities, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the managing underwritersstatements therein, if any;
(m) not later than the effective date in light of the Registration Statementcircumstances under which they were made, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Companymisleading. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon Upon receipt of any notice (a "Suspension Notice") by Holder from the Company CBC of the happening of any event of the kind described in Section 6(k) hereof3.3(d), such holder will Holder shall forthwith discontinue disposition of the Registrable Securities pursuant to the Resale Registration Statement covering such Registrable Securities until such holderSeller's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k3.3(d) hereof, or until it Holder is advised in writing (the "Advice") by the Company CBC that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the CompanyCBC, such holder will, or will request any broker-dealer acting as Holder's agent to, deliver to the Company CBC (at the Company's CBC expense) all copies, other than permanent file copies then in such holderSeller's or broker-dealer's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the ; PROVIDED, HOWEVER, that in no event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant on which Seller receives a Suspension Notice to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received on which Seller receives either the Advice or copies of the supplemented or amended prospectus Prospectus contemplated by Section 6(k3.3(d) hereof or (the Advice"Suspension Period") exceed 60 days.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Childrens Broadcasting Corp), Asset Purchase Agreement (Childrens Broadcasting Corp)
Registration Procedures. In connection with If and whenever the Company's registration obligations pursuant Company is required by the provisions of Article 2 to Section 3 hereofinclude Registrable Securities in a Registration Statement under the Securities Act, the Company will use its best efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition specified by the holders participating therein. Without limiting the foregoing, and pursuant thereto the Company will in each such case will, as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and 3.1 use its best efforts to cause such Registration Statement registration statement to become effective; provided provided, however, that as far in advance as practical before filing a Registration Statement or Prospectus such registration statement or any amendments or supplements amendment thereto, the Company will furnish to counsel for the requesting holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, with copies of reasonably complete drafts of all such documents proposed to be filedfiled (including exhibits), which documents will be subject and any such holder shall have the opportunity to the reasonable review of object to any information pertaining solely to such holders and underwriters, holder that is contained therein and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which make the holders of a majority of the Registrable Securities covered corrections reasonably requested by such Registration Statement holder with respect to such information prior to filing such registration statement or the underwriters, if any, shall reasonably object;amendment.
(b) prepare 3.2 Prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the Registration Statement such registration statement and any prospectus used in connection therewith as may be necessary to keep maintain the Registration Statement effective for the applicable period, or effectiveness of such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus registration statement and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities included in such Registration Statement during the applicable period registration statement, in accordance with the intended method or methods of distribution disposition thereof, until the earlier of (a) such time as all of the Registrable Securities included in such registration statement have been disposed of in accordance with the intended methods of disposition by the sellers holder or holders thereof as set forth in such Registration Statement registration statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell (b) one hundred eighty (180) days after such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;registration statement becomes effective.
(c) 3.3 Promptly notify the selling holders of Registrable Securities each requesting holder and the managing underwriter or underwriters, if any, promptly, and of:
(if requested by any such Person) confirm such advice in writing, (1a) when the Prospectus such registration statement or any Prospectus prospectus used in connection therewith, or any amendment or supplement or post-effective amendment thereto, has been filed, filed and, with respect to the Registration Statement such 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 such registration statement or prospectus;
(c) any notification received by the Registration Statement Company from the Commission regarding the Commission's initiation of any proceeding with respect to, or the Prospectus or for additional information, (3) of the issuance by the Commission of of, any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, such registration statement; and
(4d) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the applicable securities or blue sky laws of any jurisdiction.
3.4 Furnish to each holder of Registrable Securities included in such jurisdictions registration statement such number of conformed copies of such registration statement and of each amendment and supplement thereto, and such number of copies of the prospectus contained in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 promulgated under the Securities Act relating to such seller's Registrable Securities, and such other documents, as such holder may reasonably request to facilitate the disposition of its Registrable Securities.
3.5 Use its best efforts to register or qualify all Registrable Securities included in such registration statement under the securities or "blue sky" laws of such states as each holder of Registrable Securities shall reasonably request within twenty (20) days following the original filing of such registration statement and to keep such registration or qualification in effect for so long as such registration statement remains in effect, and take any seller or underwriter other action which may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable such holder to consummate the disposition in such jurisdictions states of the Registrable Securities covered owned by the Registration Statement; provided such holder, except that the Company will shall not for any such purpose be required (a) to qualify generally to do business as a foreign corporation in any jurisdiction where wherein it is would not then but for the requirements of this Section 5.5 be obligated to be so qualified or qualified, (b) to take any action which would subject it consent to general service of process in any such jurisdiction where it is not then so subject;or (c) to subject itself to taxation in any such jurisdiction by reason of such registration or qualification.
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use 3.6 Use its best efforts to cause the all Registrable Securities covered by the applicable Registration Statement included in 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 each holder thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;.
(k) upon 3.7 Notify each holder whose Registrable Securities are included in such registration statement, at any time when a prospectus relating thereto is required to be delivered under the occurrence Securities Act, of the happening of any event contemplated by paragraph (c)(6) aboveas a result of which any 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, in the light of the circumstances under which they were made, not misleading, and at the request of any such holder promptly prepare and furnish to such holder a reasonable number of copies of a supplement to or posteffective an amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document of such prospectus as may be necessary so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such 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 therein, in the light of the circumstances under which they were made, not misleading;.
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise 3.8 Otherwise use its best efforts to comply with all applicable rules and regulations of the SECCommission.
3.9 Use its best efforts to cause all Registrable Securities included in such registration statement to be listed, and make generally available to its security holdersupon official notice of issuance, earnings statements satisfying the provisions of Section 11(a) on any securities exchange or quotation system on which any of the Securities Act, no later than 45 days after securities of the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at same class as the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; andthen listed.
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. 3.10 The Company may require each seller of holder whose Registrable Securities are being registered to, and each such holder, as a condition to which any including Registrable Securities in such registration is being effected to statement, shall, furnish to the Company and the underwriters with such information and affidavits regarding such holder and the distribution of such securities Registrable Securities as the Company and the underwriters may from time to time reasonably request in writingwriting in connection with such registration statement. Each holder At any time during the effectiveness of any registration statement covering Registrable Securities agrees offered by acquisition a holder, if such holder becomes aware of any change materially affecting the accuracy of the information contained in such registration statement or the prospectus (as then amended or supplemented) relating to such holder, it will immediately notify the Company of such Registrable Securities that, upon change.
3.11 Upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof3.7, such each holder will forthwith discontinue such holder's disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver pursuant to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering registration statement relating to such Registrable Securities current at the time of receipt of until such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received holder receives the copies of the supplemented or amended prospectus contemplated by Section 6(k3.7 and, if so directed by the Company, shall deliver to the Company all copies, other than permanent file copies, then in such holder's possession of the prospectus relating to such Registrable Securities.
3.12 If requested by the Company or its underwriters, none of the holders will sell their Registrable Securities for a specified period (not to exceed one hundred and eighty (180) hereof or days) following the Adviceeffective date of a Registration Statement relating to the sale of Securities by the Company.
Appears in 2 contracts
Samples: Registration Rights Agreement (Dme Interactive Holdings Inc), Registration Rights Agreement (Dme Interactive Holdings Inc)
Registration Procedures. In connection with the Company's registration obligations filing of any Registration Statement pursuant to Section Sections 2 or 3 hereof, the Company will use its best efforts to shall (and shall cause each Guarantor to) effect such registration registrations to permit the sale of such Registrable Securities securities covered thereby in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company will as expeditiously as possible:hereunder, the Company shall (and shall cause each Guarantor to):
(a) prepare Prepare and file with the SEC, SEC as soon as practicablepracticable after the date hereof but in any event on or prior to the Filing Date, a the Exchange Offer Registration Statement or if the Exchange Offer Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale Statement is not filed because of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required circumstances contemplated by the SEC to be filed therewithSection 2(i), cooperate and assist in any filings required to be made with the NASDa Shelf Registration Statement as prescribed by Section 3, and use its best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided that that, if (1) a Shelf Registration Statement is filed pursuant to Section 3 or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto, before filing a any Registration Statement or Prospectus or any amendments or supplements theretothereto the Company shall (and shall cause each Guarantor to), if requested, furnish to and afford the Holders of the Transfer Restricted Securities to be registered pursuant to such Shelf Registration Statement, each Participating Broker-Dealer, the managing underwriters, if any, and each of their respective counsel, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least five Business Days prior to such filing). The Company will furnish and each Guarantor shall not file any such Registration Statement or Prospectus or any amendments or supplements thereto in respect of which the Holders must provide information for the inclusion therein without the Holders being afforded an opportunity to review such documentation if the holders of a majority in aggregate principal amount of the Registrable Transfer Restricted Securities covered by such Registration Statement and Statement, or any such Participating Broker-Dealer, as the case may be, the managing underwriters, if any, copies or any of all their respective counsel shall reasonably object in writing on a timely basis. A Holder shall be deemed to have reasonably objected to such documents filing if such Registration Statement, amendment, Prospectus or supplement, as applicable, as proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders contains an untrue statement of a majority 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 Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;Act.
(b) prepare Provide an indenture trustee for the Transfer Restricted Securities or the Exchange Notes, as the case may be, and cause the Indenture (or other indenture relating to the Transfer Restricted Securities) to be qualified under the TIA not later than the effective date of the first Registration Statement; and in connection therewith, to effect such changes to such indenture as may be required for such indenture to be so qualified in accordance with the terms of the TIA; and execute, and use its best efforts to cause such trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective amendments and post-effective amendments to the each Shelf Registration Statement or Exchange Offer Registration Statement, as the case may be, as may be necessary to keep the such Registration Statement continuously effective for the applicable periodEffectiveness Period or the Applicable Period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldas the case may be; cause the related Prospectus to be supplemented by any Prospectus supplement required Prospectus supplementby applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the provisions of the Securities Act and the Exchange Act applicable to them with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus. The Company and each Guarantor shall not, during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it Applicable Period, voluntarily takes take any action that would result in selling holders Holders of the Registrable Transfer Restricted Securities covered thereby by a Registration Statement or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Transfer Restricted Securities or such Exchange Notes during that period period, unless such action is required under by applicable law, provided that the foregoing shall not apply to actions taken rule or regulation or permitted by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;this Agreement.
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect Furnish to such Registrable Securitiesselling Holders and Participating Broker-Dealers who so request in writing (i) upon the Company’s receipt, including, without limitation, information with respect to the number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed a copy of the order of the SEC declaring such Registration Statement and any post-effective amendment theretothereto effective, (ii) such reasonable number of copies of such Registration Statement and of each amendment and supplement thereto (in each case including financial statements and schedules, all any documents incorporated therein by reference and all exhibits (including those incorporated by referenceexhibits);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.,
Appears in 2 contracts
Samples: Registration Rights Agreement (RAAM Global Energy Co), Purchase Agreement (RAAM Global Energy Co)
Registration Procedures. (a) In connection with the Company's registration obligations pursuant to Section 3 hereoffiling by the Company of a Demand Registration Statement, the Company will shall furnish to Torchmark as many copies of the prospectus, including each preliminary prospectus, in conformity with the requirements of the Securities Act as Torchmark shall reasonably request for the purpose of effecting the plan of distribution set forth therein.
(b) The Company shall use its best efforts to effect such registration to permit register or qualify the sale shares of Class A Common Stock and/or Class B Common Stock covered by a Demand Registration Statement under the securities laws of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will states as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, Torchmark shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable periodrequest; provided, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplementhowever, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; that the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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 this paragraph (or best efforts underwrittenb) 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will not be required to qualify generally as a foreign corporation or execute a general consent 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 in any jurisdiction.
(c) If the Company has delivered preliminary or final prospectuses to Torchmark and after having done so the prospectus is amended to comply with the requirements of the Securities Act, the Company shall promptly notify Torchmark and, if requested by the Company, Torchmark shall immediately return all prospectuses to the Company. The Company shall promptly provide Torchmark with revised prospectuses.
(d) At the request of Torchmark, the Company shall sign an underwriting agreement in customary form with managing underwriter selected by Torchmark and reasonably satisfactory to the Company, and shall cooperate with such jurisdiction where it is not then so subject;managing underwriter in all reasonable respects to facilitate the distribution contemplated by Torchmark, including without limitation making available the books, records and personnel of the Company for the purpose of the underwriter's "due diligence" and providing customary legal opinions and auditors' comfort letters.
(e) The Offering Expenses incurred in complying with this Section 5.3 shall be paid as follows:
(i) cooperate Offering Expenses in connection with a Demand Registration Statement shall be paid by Torchmark; provided, that in the selling holders event any shares of Registrable Securities the Company's stock are included in a Demand Registration Statement in addition to the shares of Class A Common Stock and/or Class B Common Stock held by Torchmark or any other member of the Torchmark Group, the Company shall pay its prorata portion of the Offering Expenses equal to the Offering Expenses multiplied by a fraction, the numerator of which is the number of any shares included in the Demand Registration Statement other than the shares held by Torchmark or any other member of the Torchmark Group and the managing underwritersdenominator of which is the total number of shares included in the Demand Registration Statement; and
(ii) Offering Expenses in connection with a Company Registration Statement (as defined below) shall be paid by the Company; provided, if anythat in the event Class A Common Stock and/or Class B Common Stock held by Torchmark or any other member of the Torchmark Group is included in the Company Registration Statement, Torchmark shall pay its prorata portion of the Offering Expenses equal to facilitate the timely preparation Offering Expenses multiplied by a fraction, the numerator of which is the number of such Class A Common Stock and/or Class B Common Stock held by Torchmark or any other member of the Torchmark Group and delivery included in the Company Registration Statement and the denominator of certificates representing Registrable Securities which is the total number of shares included in the Company Registration Statement.
(f) Prior to be sold March 31, 2002, each time the Company proposes to register any of its securities (except with respect to registration statements on Form S-4 or Form S-8 or another form available for registration of securities other than for sale to the public for cash), whether or not for sale for its own account, which is in whole or in part, an underwritten public offering (a "Company Registration Statement"), it will give prompt written notice to Torchmark of its intention to do so and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters of Torchmark's rights under this Section 5.3(f). Torchmark may request at least two business within thirty (30) days prior after receipt of any such notice to include in the Company Registration Statement some or any sale portion of Registrable Securities to the underwriters;
(j) shares of Class A Common Stock or Class B Common Stock then held by Torchmark or any other member of the Torchmark Group. The Company shall use its best efforts to cause the Registrable Securities covered by the applicable Company Registration Statement to include all shares of Class A Common Stock and/or Class B Common Stock that Torchmark requested to be registered with or approved by such other governmental agencies or authorities as included; provided, however, the number of shares of Class A Common Stock and/or Class B Common Stock Torchmark requested be included in the Company Registration Statement may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
reduced (k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file pro rata among Torchmark and any other required document stockholder with similar registration rights based on the number of shares so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement requested to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4registered) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative that the managing underwriter shall be of the holders of a majority opinion that such inclusion would adversely affect the marketing of the Registrable Securities, any underwriter participating securities to be sold. Torchmark's exercise of its right under this Section 5.3(f) to include shares in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall not be extended by the number of days during the period from and including the date of the giving of such notice pursuant counted against Torchmark's right to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicerequest three registrations.
Appears in 2 contracts
Samples: Public Offering and Separation Agreement (Waddell & Reed Financial Inc), Public Offering and Separation Agreement (Waddell & Reed Financial Inc)
Registration Procedures. In connection with the Company's registration obligations of the Company pursuant to Section 3 hereof2, the Company will shall use its best reasonable efforts to effect such or cause to be effected the registration of the Registrable Securities under the Securities Act to permit the sale of such Registrable Securities by the Stockholders as set forth in accordance with the intended method or methods of distribution thereofSection 2, and pursuant thereto the Company will as expeditiously as possibleshall use reasonable efforts to:
(a) (i) prepare and file a Registration Statement with the SEC, as soon as practicablewithin the time period specified in paragraph (a) of Section 2 with respect to a Required Registration, a which Registration Statement or Registration Statements (x) shall be on any appropriate a form under selected by the Securities ActCompany for which the Company qualifies and shall be reasonably acceptable to counsel for the Stockholders, which form (y) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof by the Stockholders, and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to (ii) cause such Registration Statement to become effective; provided that before filing a effective and remain effective in accordance with Section 2, and (iii) cause each Registration Statement prepared pursuant to Section 2 and the related Prospectus and any amendment or Prospectus or any amendments or supplements supplement thereto, the Company will furnish to the holders as of the Registrable Securities covered by effective date of such Registration Statement Statement, amendment or supplement (x) to comply in all material respects with any requirements of the Securities Act and the underwriters, if any, copies rules and regulations of all such documents proposed 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, which documents will be subject stated therein or necessary to make the reasonable review of such holders and underwriters, and the Company will statements therein not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectmisleading;
(b) prepare and file with the SEC such amendments and post-effective amendments to the each such Registration Statement Statement, as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the each such Prospectus to be supplemented by any required Prospectus prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof Stockholders, as set forth in such Registration Statement Statement;
(c) furnish to each Stockholder participating in a registration pursuant to Section 2 and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Stockholder or such Underwriter may reasonably request in order to facilitate the Prospectuspublic sale or other disposition of the Registrable Securities;
(d) (i) 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 each Participating Stockholder shall reasonably request; and (ii) keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective; provided, however, that the Company shall not be deemed obligated to have used its best efforts qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to keep subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject or to consent to be subject 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;
(e) notify each Participating Stockholder promptly
(i) when a Registration Statement has become effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has amendments and supplements thereto become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4iii) if at if, between the effective date of a Registration Statement and the closing of any time sale of securities covered thereby pursuant to any agreement to which the Company is a party, the representations and warranties of the Company contemplated by paragraph (o) below contained in such agreement cease to be true and correct, (5) of the receipt by correct in all material respects or if the Company of receives 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 purpose, and (6iv) of the happening occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingSuspension Period;
(df) make every reasonable effort furnish counsel for each such Underwriter, if any, and for each participating Stockholder copies of any request by the SEC or any state securities authority for amendments or supplements to a Registration Statement and Prospectus or for additional information;
(g) obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible momenttime;
(eh) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringupon request, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating furnish to the plan Underwriter or managing Underwriter of distribution with respect to such an Underwritten Offering of Registrable Securities, including, without limitation, information with respect to the number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterif any, without charge, at least one signed copy of the each Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver exhibits; and furnish to each selling holder of Registrable Securities and the underwriters, if anyParticipating Stockholder, without charge, as many copies one conformed copy of the Prospectus (including each preliminary prospectus) Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwritersexhibits thereto, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subjectunless requested);
(i) cooperate in the case of an Underwritten Offering, enter into underwriting agreements in customary form which include provisions with respect to indemnification and contribution in customary form and consistent with the selling holders of Registrable Securities provisions relating to indemnification 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriterscontribution contained herein;
(j) use its best efforts to cause the all Registrable Securities covered to be listed on any securities exchange on which the Ordinary Shares are then listed or to be quoted in any inter-dealer quotations system in which the Ordinary Shares are then quoted if so requested by the applicable Registration Statement to be registered with Participating Stockholders or approved by such other governmental agencies the Underwriter or authorities as may be necessary to enable the seller or sellers thereof or the underwritersUnderwriters of an Underwritten Offering of Registrable Securities, if any, to consummate the disposition of such Registrable Securities;; and
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder. Each Stockholder agrees, no later than 45 days after the end of any 12-month period (or 90 days, if such period is as a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior condition to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)registration obligations provided herein, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such Stockholder, the ownership of Registrable Securities by such Stockholder and the proposed distribution by such Stockholder of such securities Registrable Securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Stockholder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereofa Suspension Period, such holder Stockholder will forthwith discontinue disposition of Registrable Securities pursuant to the affected Registration Statement until such holderStockholder's receipt of the copies of the any supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder Stockholder will deliver to the Company (at the expense of the Company's expense) all copiescopies in its possession, other than permanent file copies then in such holderStockholder's possession, of the Prospectus covering such Registrable Securities which was current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Registration Rights Agreement (Pepe Jeans Lond Corp), Registration Rights Agreement (Hilfiger Tommy Corp)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the (a) The Company will shall use its best all reasonable efforts to effect such registration to permit the sale of such the Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will shall as expeditiously as possiblepracticable:
(ai) prepare and file with the SEC, as soon as practicable, a the Registration Statement or Registration Statements on any an appropriate form under the Securities Actregistration form, which Registration Statement shall comply as to form shall be available for in all material respects with the sale requirements of the Registrable Securities in accordance with the intended method applicable form and include or methods of distribution thereof and shall include incorporate by reference all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDtherewith or incorporated by reference therein, and in either case use best all reasonable efforts to cause such the Registration Statement to become effective and remain effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(bii) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will shall terminate when all Registrable Securities covered by such the Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 promulgated under the Securities Act; Act and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such the Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof Selling Shareholders set forth in such the Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(ciii) notify the selling holders of Registrable Securities Selling Shareholders and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice in writingwriting promptly, (1) when 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 amendmentamendment thereto, when the same has become effective, (2) of any comments of the SEC or any state securities authority with regard to the Registration Statement and of any request by the SEC or any state securities authority for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission SEC or any state securities authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 purpose, (5) in the case of any shelf Registration Statement, if between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company contained in any underwriting agreement, securities sale agreement or other similar agreement, relating to the offering cease to be true and correct in all material respects and (6) of the happening of any event which or the discovery of any facts that makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue in any material respect or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(eiv) if requested by the managing underwriter or underwriters or a holder of Selling Shareholder whose Registrable Securities are being sold offered for sale in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders holder of a majority of the Registrable Securities being sold agree offered for sale consider should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered for sale, 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 practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(fv) if requested by any Selling Shareholder, furnish to each selling holder of Registrable Securities and each managing underwriterSelling Shareholder, without charge, at least one signed copy of the Registration Statement and Statement, any amendment (including any post-effective amendment amendment) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gvi) deliver to each selling holder of Registrable Securities Selling Shareholder and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hvii) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable SecuritiesSelling Shareholders, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such the Registrable Securities for offer and sale under the state securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided provided, however, that the Company will shall 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(qviii) promptly prior otherwise reasonably cooperate with the Selling Shareholders to carry out the filing intent of any document which is to be incorporated by reference into the Registration Statement or the Prospectus this Agreement.
(after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. c) The Company may require each seller of Registrable Securities as to which any registration is being effected Selling Shareholders to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. ; provided, however, that such information shall be used by the Company only to the extent necessary for and in connection with, such registration.
(d) Each holder of Registrable Securities Selling Shareholder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening imposition of any event order suspending the effectiveness of the kind described in Section 6(k) hereof, a Registration Statement such holder will Selling Shareholder shall forthwith discontinue disposition of such Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it Selling Shareholder is advised in writing (the "“Advice"”) by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will shall deliver to the Company (at the Company's ’s expense) all copies, other than permanent file copies then in such holder's ’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such the Registration Statement in Section 3 shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof stop order to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Registration Rights Agreement (Igate Corp), Registration Rights Agreement (Igate Corp)
Registration Procedures. In connection with the Company's registration obligations Whenever any Registrable Securities are to be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best commercially reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as possible:
(a) prepare and file with the SEC, SEC as soon promptly as practicable, practicable a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become effective; effective (provided that before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement and the Statement, their underwriters, if any, and their respective counsel and accountants, within a reasonable time prior to the filing thereof, copies of all such documents proposed to be filed, which documents will be subject to and such holders shall have the reasonable review of opportunity to object to any information pertaining to such holders and underwriters, that is contained therein and the Company will not file make the corrections reasonably requested by such holders with respect to such information prior to filing any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectprospectus);
(b) notify each holder of Registrable Securities of the effectiveness of each Registration Statement filed hereunder and prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for a period of not less than the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; Lock-up Period and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement;
(c) furnish, without charge, to each seller of Registrable Securities such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits and all documents incorporated therein by reference), the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) use its commercially reasonable efforts to register or supplement qualify such Registrable Securities and other securities covered by such Registration Statement under such securities laws or blue sky laws of such jurisdictions as any seller reasonably requests, and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the Prospectus; disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that the Company shall not be deemed required to have used its best efforts (i) qualify generally to keep do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any material fact required to be stated therein or necessary to make the statements therein not misleading, and, at the request of any such seller, the Company shall prepare a supplement or amendment to such prospectus so that, as thereafter delivered 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 required to be stated therein or necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on the Nasdaq Global Market or other national securities exchange if the securities qualify to be so listed;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than the effective during date of such Registration Statement;
(h) enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the applicable period if it voluntarily takes any action that would result in selling holders of a majority of the Registrable Securities covered thereby not being able sold or the underwriters, if any, reasonably request in order to sell expedite or facilitate the disposition of such Registrable Securities during that (including effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition 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 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;
(j) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period unless of at least twelve months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities, which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a controlling person of the Company, to participate in the preparation of such action is required under applicable lawregistration or comparable statement and to require the insertion therein of material, provided that the foregoing shall not apply furnished to actions taken by the Company in good faith writing, which in the reasonable judgment of such holder and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableits counsel should be included;
(cl) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use 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 commercially reasonable efforts promptly to obtain the withdrawal of such order;
(m) notify the selling holders sellers of Registrable Securities and the managing underwriters, if any, promptly, and as promptly as practicable:
(if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2i) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus prospectus or for additional information, ;
(3ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation or threat of any proceedings by any Person for that such purpose, ; and
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iii) of the receipt by the Company of any notification with respect to the suspension of the qualification of the any Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of any jurisdiction or the initiation or threat of any proceeding for such jurisdictions as purpose;
(n) furnish for delivery in connection with the closing of any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions offering of Registrable Securities unlegended certificates representing ownership of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 being sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as shall be requested by the managing underwriters may request at least two business days prior to any sale of Registrable Securities to sellers or the underwriters;
(jo) 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 Commission 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 shall not be subject to review;
(p) use its best commercially reasonable efforts to cause the such Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;; and
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2q) 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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof comfort letter from the Company's ’s independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering such matters of the type customarily covered in "by cold comfort" comfort letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause reasonably request (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company constitute at least 10% of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceStatement).
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Rex Energy Corp)
Registration Procedures. In connection with Whenever the Company's registration obligations holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will Corporation shall use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Corporation shall as expeditiously as possible:
(a) A. prepare and file with the SEC, as soon as practicablenot later than six months after receipt of a request to file a Registration Statement for a Demand Registration, a Registration Statement on a form for which the Corporation then qualifies which is satisfactory to the Corporation and the holders of a majority of the Registrable Securities being registered (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or Registration Statements on any appropriate underwriters shall determine the form under the Securities Act, to be used) and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) B. prepare and file with the SEC such amendments and post-post- effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable perioda period of not less than six months, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldsold or withdrawn; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) C. notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, ,
(1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, ;
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, ; and
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iii) of the receipt by the Company 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;purpose.
(d) D. make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) E. if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringsold, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree and their respective counsel reasonably conclude should be included therein relating in the Registration Statement, so that such Registration Statement conforms in both form and substance to the plan requirements of distribution with respect to such Registrable Securitiesthe Securities Act, including, including without limitation, information limitation with respect to the number 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;
F. promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy after initial filing of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gStatement) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many provide copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents document to the use of the Prospectus or any amendment or supplement thereto by each of counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, in connection with and make the offering and sale Corporation's representatives available for discussion of the Registrable Securities covered by the Prospectus or any amendment or supplement theretosuch document;
(h) G. prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided provided, however, that the Company will Corporation shall 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) I. upon the occurrence happening of any event contemplated which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by paragraph (c)(6) abovereference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will 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;
(l) J. cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company Corporation are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) K. provide a transfer agent and registrar for all Registrable Securities and a CUSIP number for all Registrable Securities, in each case not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(n) L. enter into such agreements (including an underwriting agreementagreement satisfactory to the Corporation, containing customary representations, warranties and agreements) and take all such other actions in connection therewith in order reasonably to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration:
(1i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in such form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; offerings;
(2ii) obtain opinions of counsel to the Company Corporation and updates thereof (which counsel and opinions (opinions, in form, scope and substance) , shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; ;
(3iii) obtain "cold comfort" letters and updates thereof from the CompanyCorporation's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by to underwriters in connection with primary underwritten offerings; and
(4iv) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (ki) above of this Paragraph L and with any customary conditions contained in the underwriting agreement or other agreement entered into by the CompanyCorporation. The obligations under this Paragraph L above shall be done performed at each closing under such underwriting or similar agreement or as and to the extent required thereunder;.
(o) M. make available for inspection by a representative of the holders sellers of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationregistration statement, and any attorney attorney, accountant or accountant other agent retained by the sellers or underwriterunderwriters, all financial and other records, pertinent corporate documents and properties of the CompanyCorporation, and cause the CompanyCorporation's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney attorney, accountant or accountant agent solely for use in connection with such registrationregistration statement; provided provided, however, that any records, information or documents that are designated by the Company Corporation in writing as confidential shall be kept confidential by such Persons unless disclosure of pursuant to such records, information or documents is required by court or administrative orderreasonable confidentiality agreements as the Corporation may request;
(p) N. otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12twelve-month period (or 90 days, if such period is a fiscal year) ): (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts an underwritten offering, or (2) or, if not sold to underwriters in such an offering, ; and (ii) beginning with the first month of the CompanyCorporation's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12twelve-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 2 contracts
Samples: Registration Rights Agreement (Electronic Retailing Systems International Inc), Registration Rights Agreement (Systems Holding Inc)
Registration Procedures. In Whenever the Company is required to effect a registration hereunder (or, as applicable, requested to assist in connection with the Company's a sale under a shelf registration obligations pursuant to Section 3 hereofstatement), the Company will shall use its reasonable best efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as promptly as practicable, and pursuant thereto the Company will and, in connection with any such request, as expeditiously as possibleapplicable:
(a) The Company shall as expeditiously as reasonably practicable prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements registration statement on any form for which the Company then qualifies or that counsel for the Company shall deem appropriate form under the Securities Act, and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method or methods of distribution thereof thereof, and shall include all financial statements required by the SEC use its reasonable best efforts to be (i) cause such filed therewithregistration statement to become and remain effective, cooperate and assist in (ii) promptly update such registration statement so that it does not contain an untrue statement of a material fact or omit to state any filings material fact required to be made with stated therein or necessary to make the NASDstatements therein not misleading, and use best efforts to cause until all of the Registrable Securities included in such Registration Statement to become effectiveregistration statement shall have actually been sold thereunder; provided that before that, at the request of any Holder, the intended method of distribution relating to the sale of the Registrable Securities to be registered thereunder shall provide for individual Holders to be named as selling stockholders under such registration statement.
(b) Prior to filing a Registration Statement registration statement or Prospectus prospectus or any amendments amendment or supplements supplement thereto, the Company will shall, if requested, furnish to the holders each Holder and each underwriter, if any, of the Registrable Securities covered by such Registration Statement and the underwriters, if any, registration statement copies of all such documents registration statement as proposed to be filed, which and thereafter the Company shall furnish to each Holder and underwriter, if any, such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto and documents will be subject incorporated by reference therein), the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus) and any other prospectus filed under Rule 424 or Rule 430A under the Securities Act and such other documents as a Holder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Holder. The Holders shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to the reasonable review of such holders and underwritersHolders, and the Company will shall use its reasonable best efforts to comply with such request, provided, however, that the Company shall not file have any Registration Statement or amendment thereto or obligation so to modify any Prospectus or any supplement thereto information if the Company reasonably expects that so doing would cause the prospectus to which the holders contain an untrue statement of a majority material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.
(c) After the filing of the Registrable Securities covered by such Registration Statement or registration statement, the underwriters, if any, Company shall reasonably object;
(bi) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus related prospectus to be supplemented by any required Prospectus prospectus supplement, and and, as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and , (ii) 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 during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers Holders thereof set forth in such Registration Statement registration statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith prospectus and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company (iii) promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission Holders of any stop order suspending the effectiveness of the Registration Statement issued or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt threatened 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus SEC or any document incorporated therein by reference untrue state securities commission and take all reasonable best efforts to prevent the entry of such stop order or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;remove it if entered.
(d) make every The Company shall use its reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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 underwrittento (i) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement register or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of qualify the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the such registration or qualification of statement under such Registrable Securities for offer and sale under the other securities or “blue sky sky” laws of such jurisdictions in the United States as any seller or underwriter the Holders reasonably requests (in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions light of the Registrable Securities covered by the Registration Statement; provided that the Company 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 Holders’ intended plan of process in any such jurisdiction where it is not then so subject;
distribution) requests and (iii) 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 cause such Registrable Securities to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable the seller or sellers thereof or the underwriters, if any, a Holder to consummate the disposition of the Registrable Securities owned by such Registrable Securities;Holder, provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2.9(d), (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction.
(ke) upon The Company shall immediately notify the Holders, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the occurrence of any an event contemplated by paragraph (c)(6) above, prepare requiring the preparation of a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document such prospectus so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading;misleading and promptly prepare and make available to the Holders and file with the SEC any such supplement or amendment.
(lf) cause all Registrable Securities covered by The Company shall select an underwriter or underwriters in connection with any Underwritten Offering; provided that, in the event of a Demand Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities Xxxxxx Holders or the managing underwritersVestar Holders, if any;
(m) not later than such underwriter or underwriters shall be selected by the effective date Xxxxxx Holders or the Vestar Holders, as the case may be, with the consent of the Registration StatementCompany (which consent shall not be unreasonably withheld). In connection with any Underwritten Offering, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) Company shall enter into such customary agreements (including an underwriting agreementagreement in customary form) and take all such other actions in connection therewith as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities and in any such connectionUnderwritten Offering, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties including, to the holders extent necessary, the engagement of a “qualified independent underwriter” in connection with the qualification of the underwriting arrangements with the FINRA.
(g) Subject to the execution of confidentiality agreements satisfactory in form and substance to the Company in the exercise of its good faith judgment, the Company will give to the Holders, their counsel and accountants (i) reasonable and customary access to its books and records, that, in the opinion of the Board are pertinent corporate documents, and (ii) such Registrable Securities opportunities to discuss the business of the Company with its directors, officers, employees, counsel and the underwritersindependent public accountants who have certified its financial statements, as shall be appropriate, in the reasonable judgment of counsel, to the Holders, to enable them to exercise its due diligence responsibility.
(h) The Company shall use its reasonable best efforts to furnish to the Holders and to each such underwriter, if any, in forma signed counterpart, substance and scope as are customarily made by issuers addressed to underwriters in primary underwritten offerings and covering matters includingthe Holders or such underwriter, but not limited to, those set forth in the Purchase Agreement; of (2i) obtain an opinion or opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substanceii) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" comfort letter or comfort letters and updates thereof from the Company's ’s independent certified public accountants addressed to the selling holders of Registrable Securities and the underwritersaccountants, if any, such letters to be each in customary form and covering such matters of the type kind customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered intoopinions or comfort letters, as the same shall set forth in full case may be, as the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold Holder and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;underwriters reasonably request.
(oi) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company Each Holder shall promptly furnish in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such Holder that is reasonably necessary for the distribution of such securities the Registrable Securities as the Company may from time to time reasonably request and such other information regarding such Holder as may be legally required or advisable in writing. connection with such registration.
(j) Each holder of Registrable Securities Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof2.9(e), such holder will Holder shall forthwith discontinue disposition of Registrable Securities pursuant to the registration statement covering such Holder’s Registrable Securities until such holder's Holder’s receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus2.9(e), and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) Holders shall destroy all copies, other than any permanent file copies then in such holder's Holder’s possession, of the Prospectus most recent prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event If the Company shall give any such notice, the time periods regarding Company shall extend the maintenance of period during which such Registration Statement registration statement shall be extended maintained effective (including the period referred to in Section 2.9(a)) by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(62.9(e) hereof to and including the date when each seller the Company shall make available to the Holders a prospectus supplemented or amended to conform with the requirements of Section 2.9(e).
(k) The Company shall use its reasonable best efforts to list all Registrable Securities covered by such Registration Statement registration statement on any securities exchange or quotation system on which any of the Registrable Securities are then listed or traded.
(l) The Company shall have received the copies appropriate officers of the supplemented Company (i) prepare and make presentations at any “road shows” and before analysts and rating agencies, as the case may be, (ii) take other actions to obtain ratings for any Registrable Securities and (iii) otherwise use their reasonable best efforts to cooperate as reasonably requested by the underwriters in the offering, marketing or amended prospectus selling of the Registrable Securities.
(m) The Company shall use its reasonable best efforts to take all other steps necessary to effect the registration of Registrable Securities contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 2 contracts
Samples: Registration Rights Agreement (Duff & Phelps Corp), Registration Rights Agreement (Duff & Phelps Corp)
Registration Procedures. In connection with the Company's any registration obligations pursuant to Section 3 hereofhereunder, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possiblewill:
(a) prepare and file in connection with the SECUnderwritten Demand, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities enter into customary agreements (including underwriting agreements in accordance with the intended method or methods of distribution thereof and shall include all financial statements required customary form) if requested by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities requesting such underwritten offering. Such underwriting agreement will contain such representations and warranties by the managing underwriters, if any, promptly, Company and (if requested by any such Person) confirm such advice other terms and provisions as are customarily contained in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, underwriting agreements generally with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securitiessecondary distributions, including, without limitation, information with respect customary indemnification and contribution provisions, and customary agreements as to the number provision of opinions of counsel and accountants’ letters. The holders of Registrable Securities being sold on whose behalf the Registrable Securities are to such underwriters, the purchase price being paid therefor be distributed by such underwriters and with respect shall be parties to any other terms of such underwriting agreement and such agreement will contain such representations and warranties by 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriterssuch other terms and provisions as are customarily contained in underwriting agreements generally with respect to secondary distributions, if anyincluding, in connection with the offering and sale of the Registrable Securities covered by the Prospectus without limitation, customary representations, warranties or any amendment or supplement thereto;
(h) prior agreements regarding such holder’s title to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior indemnification with respect to any sale written information provided by such holder of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or Company expressly for inclusion in the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such statement. The 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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if anyby, and the holders other agreements on the part of, the Company to and for the benefit of a majority of the Registrable Securities being sold) addressed to each selling holder and the such underwriters, if any, covering shall also be made to and for the matters customarily covered in opinions requested in underwritten offerings and benefit of such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters Securities.
(b) in connection with primary underwritten offerings; (4) if an underwriting agreement is entered intothe Underwritten Demand, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative any seller of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, registration statement and any attorney attorney, accountant or accountant other agent retained by the sellers any such seller or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors directors, employees and employees independent accountants to supply all information reasonably requested by any such representativeseller, underwriter, attorney attorney, accountant or accountant agent in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderregistration statement;
(pc) otherwise use its best efforts furnish to comply each selling holder and the underwriters, if any, such number of copies of such registration statement, any amendments thereto, any documents incorporated by reference therein, the prospectus, including a preliminary prospectus in conformity with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) requirements of the Securities Act, and such other documents as such selling holder or underwriters may reasonably request in order to facilitate the public sale or other disposition of the securities owned by such selling holder;
(d) file and use its commercially reasonable efforts to register or qualify the securities covered by such registration statement under such other securities or state securities or “blue sky” laws of such jurisdictions as each selling holder shall request, and do any and all other acts and things that may be necessary under such state securities or “blue sky” laws to enable such selling holder to consummate the public sale or other disposition in such jurisdictions of the securities owned by such selling holder, except that the Company shall not for any such purpose be required to qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified;
(e) if reasonably requested by the managing underwriter or underwriters (if any), any selling holder, or such selling holder’s counsel, promptly incorporate into a prospectus supplement or post-effective amendment such information as such person requests to be included therein, including, without limitation, with respect to the securities being sold by such selling holder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and any other terms of an underwritten offering of the securities to be sold in such offering, and promptly make all required filings of such prospectus supplement or post-effective amendment;
(f) cause the securities covered by such registration statement to be listed on the national securities exchange or quoted on the quotation system on which the Shares are then listed or quoted;
(g) in connection with the Underwritten Demand, participate, to the extent reasonably requested by the managing underwriter for the offering or the holders, in customary efforts to sell the securities being offered, and cause such steps to be taken as to ensure such good faith participation of senior management officers of the Company in “road shows” as is customary;
(h) in connection with the Underwritten Demand, cooperate with each holder and each underwriter participating in the disposition of Registrable Securities and their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, Inc., including, if appropriate, the pre-filing of a prospectus as part of a shelf registration statement in advance of an underwritten offering;
(i) otherwise cooperate with the underwriter(s), the Commission and other regulatory agencies and take all actions and execute and deliver or cause to be executed and delivered all documents reasonably necessary to effect the offering and sale of the Registrable Securities as contemplated hereunder; and
(j) 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 no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceregistration.
Appears in 2 contracts
Samples: Registration Rights Agreement (Terra Industries Inc), Registration Rights Agreement (Anglo American PLC)
Registration Procedures. In connection with If and whenever the Company's registration obligations pursuant Company is required to Section 3 hereofregister Registrable Securities in a Demand Registration or a Piggyback Registration, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods plan of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, SEC as soon as practicable, practicable a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; effective and remain effective until the Registrable Securities covered by such Registration Statement have been sold, provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will shall furnish to the holders Holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, draft copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders Holders and underwriters, and the Company will shall not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders Holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement Statement, and such supplements to the Prospectus, as may be necessary requested by any Holder of Registrable Securities or any underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when until all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period are sold in accordance with the intended method or methods plan of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) promptly notify the selling holders Holders of Registrable Securities and the managing underwritersunderwriter, if any, promptly, and (if requested by any such Person) confirm such advice in writing, :
(1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, ,
(2ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, ,
(3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, ,
(4iv) if at any time the representations and warranties of the Company contemplated by clause (i) of paragraph (o) below cease to be true and correct, accurate in all material respects,
(5v) 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 and purpose, and
(6vi) of the happening existence of any event fact which makes any statement made results in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingcontaining a Misstatement;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momenttime;
(e) if requested by the managing underwriter or underwriters or a holder Holder of Registrable Securities being sold in connection with an underwritten offering, promptly immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriter and the holders Holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan sale of distribution with respect to such the Registrable Securities, including, without limitation, information with respect to the number of shares 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;
(f) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement) provide copies of such document to counsel to the selling Holders of Registrable Securities and to the managing underwriter, if any, and make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling Holders or underwriters may reasonably request;
(g) furnish to each selling holder Holder of Registrable Securities and each the managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gh) deliver to each selling holder Holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the each Prospectus (including and each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; request (the Company consents hereby consenting to the use of the each such Prospectus (or any amendment or supplement thereto preliminary prospectus) by each of the selling holders Holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus (or any amendment or supplement theretopreliminary prospectus);
(hi) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders Holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions in the United States as any seller such selling Holders or underwriter reasonably requests underwriters may designate in writing and do any and all other acts or things anything else necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall 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 in any such jurisdiction where it is not then so subject;
(ij) cooperate with the selling holders Holders of Registrable Securities and the managing underwritersunderwriter, if any, to facilitate the timely preparation and delivery of certificates not bearing any restrictive legends representing the Registrable Securities to be sold and not bearing any restrictive legends; and enable cause such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriter may request at least two three business days prior to any sale of Registrable Securities to the underwriters;
(jk) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities in the United States as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kl) upon if the occurrence of any event contemplated by paragraph (c)(6) aboveRegistration Statement or the Prospectus contains a Misstatement, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleadingMisstatement;
(lm) use its best efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each any national securities exchange or authorized for quotation on which similar securities issued by NASDAQ or in the Company are then listed National Market System, if requested by the holders Holders of a majority of such Registrable Securities or the managing underwritersunderwriter, if any;
(mn) provide a CUSIP number for all Registrable Securities not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(no) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith do anything else necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities Securities, and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration :
(1i) make such representations and warranties to the holders Holders of such Registrable Securities and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; offerings;
(2ii) 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 managing underwritersunderwriter, if any, and the holders Holders of a majority of the Registrable Securities being sold) addressed to each selling holder Holder and the underwritersunderwriter, if any, covering the matters customarily covered in opinions requested delivered to underwriters in primary underwritten offerings and such other matters as may be reasonably requested by such holders and Holders or underwriters; ;
(3iii) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders Holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; ;
(4iv) if an underwriting agreement is entered into, cause the same shall set forth in full to include the indemnification and contribution provisions and procedures of Section 8 7 hereof with respect to all parties to be indemnified pursuant to said SectionSection (or, with respect to the indemnification of such underwriters, such similar indemnification and contribution provisions as such underwriters shall customarily require); and and
(5v) the Company shall deliver such documents and certificates as may be requested by the holders Holders of a majority of the Registrable Securities being sold and the managing underwritersunderwriter, if any, to evidence compliance with clause (ki) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderotherwise reasonably requested by the Holders of a majority of the Registrable Securities being sold;
(op) make available for inspection by a representative representatives of the holders Holders of a majority of the Registrable SecuritiesSecurities being sold, any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney or accountant retained by the sellers or any such underwriter, all financial and other records, records and pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationthe Registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;; and
(pq) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1x) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts an underwritten offering, or (2) or, if not sold to underwriters in such an offering, (y) beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Prometheus Homebuilders Funding Corp)
Registration Procedures. In connection with the Company's registration obligations of the Company pursuant to Section 3 hereof2, the Company will shall use its best reasonable efforts to effect such or cause to be effected the registration of the Registrable Securities under the Securities Act to permit the sale of such Registrable Securities by the Stockholders as set forth in accordance with the intended method or methods of distribution thereofSection 2, and pursuant thereto the Company will as expeditiously as possibleshall use reasonable efforts to:
(a) (i) prepare and file a Registration Statement with the SEC, as soon as practicablewithin the time period specified in paragraph (a) of Section 2 with respect to a Required Registration, a which Registration Statement or Registration Statements (x) shall be on any appropriate a form under selected by the Securities ActCompany for which the Company qualifies and shall be reasonably acceptable to counsel for the Stockholders, which form (y) shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof by the Stockholders, and (z) shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to (ii) cause such Registration Statement to become effective; provided that before filing a effective and remain effective in accordance with Section 2, and (iii) cause each Registration Statement prepared pursuant to Section 2 and the related Prospectus and any amendment or Prospectus or any amendments or supplements supplement thereto, the Company will furnish to the holders as of the Registrable Securities covered by effective date of such Registration Statement Statement, amendment or supplement (x) to comply in all material respects with any requirements of the Securities Act and the underwriters, if any, copies rules and regulations of all such documents proposed 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, which documents will be subject stated therein or necessary to make the reasonable review of such holders and underwriters, and the Company will statements therein not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectmisleading;
(b) prepare and file with the SEC such amendments and post-effective amendments to the each such Registration Statement Statement, as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the each such Prospectus to be supplemented by any required Prospectus prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof Stockholders, as set forth in such Registration Statement Statement;
(c) furnish to each Stockholder participating in a registration pursuant to Section 2 and to each Underwriter of an Underwritten Offering of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Stockholder or such Underwriter may reasonably request in order to facilitate the Prospectuspublic sale or other disposition of the Registrable Securities;
(d) (i) 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 each Participating Stockholder shall reasonably request; and (ii) keep each such registration or qualification effective during the period such Registration Statement is required to be kept effective; provided, however, that the Company shall not be deemed obligated to have used its best efforts qualify -------- ------- as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to keep subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject or to consent to be subject 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;
(e) notify each Participating Stockholder promptly (i) when a Registration Statement has become effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has amendments and supplements thereto become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission SEC or any state securities authority of any stop order, injunction or other order or requirement suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4iii) if at if, between the effective date of a Registration Statement and the closing of any time sale of securities covered thereby pursuant to any agreement to which the Company is a party, the representations and warranties of the Company contemplated by paragraph (o) below contained in such agreement cease to be true and correct, (5) of the receipt by correct in all material respects or if the Company of receives 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 purpose, and (6iv) of the happening occurrence of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleadingSuspension Period;
(df) make every reasonable effort furnish counsel for each such Underwriter, if any, and for each participating Stockholder copies of any request by the SEC or any state securities authority for amendments or supplements to a Registration Statement and Prospectus or for additional information;
(g) obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible momenttime;
(eh) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringupon request, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating furnish to the plan Underwriter or managing Underwriter of distribution with respect to such an Underwritten Offering of Registrable Securities, including, without limitation, information with respect to the number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterif any, without charge, at least one signed copy of the each Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver exhibits; and furnish to each selling holder of Registrable Securities and the underwriters, if anyParticipating Stockholder, without charge, as many copies one conformed copy of the Prospectus (including each preliminary prospectus) Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwritersexhibits thereto, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subjectunless requested);
(i) cooperate in the case of an Underwritten Offering, enter into underwriting agreements in customary form which include provisions with respect to indemnification and contribution in customary form and consistent with the selling holders of Registrable Securities provisions relating to indemnification 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriterscontribution contained herein;
(j) use its best efforts to cause the all Registrable Securities covered to be listed on any securities exchange on which the Ordinary Shares are then listed or to be quoted in any inter-dealer quotations system in which the Ordinary Shares are then quoted if so requested by the applicable Registration Statement to be registered with Participating Stockholders or approved by such other governmental agencies the Underwriter or authorities as may be necessary to enable the seller or sellers thereof or the underwritersUnderwriters of an Underwritten Offering of Registrable Securities, if any, to consummate the disposition of such Registrable Securities;; and
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder. Each Stockholder agrees, no later than 45 days after the end of any 12-month period (or 90 days, if such period is as a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior condition to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)registration obligations provided herein, provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding such Stockholder, the ownership of Registrable Securities by such Stockholder and the proposed distribution by such Stockholder of such securities Registrable Securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities Stockholder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereofa Suspension Period, such holder Stockholder will forthwith discontinue disposition of Registrable Securities pursuant to the affected Registration Statement until such holderStockholder's receipt of the copies of the any supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder Stockholder will deliver to the Company (at the expense of the Company's expense) all copiescopies in its possession, other than permanent file copies then in such holderStockholder's possession, of the Prospectus covering such Registrable Securities which was current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Hilfiger Tommy Corp)
Registration Procedures. In connection with (a) Obligations of the Company's . Whenever registration obligations of Registrable Securities has been requested pursuant to Section 3 or Section 4 hereof, the Company will shall use its best commercially reasonable efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, thereof and pursuant thereto the Company will as expeditiously as possiblefollowing provisions shall apply in connection therewith:
(ai) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form No Holder shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC entitled to be filed therewith, cooperate and assist named as a selling securityholder in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may of the time of its initial effectiveness or at any time thereafter, and no Holder shall be necessary entitled to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause use the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders resales of Registrable Securities at any time, unless such Holder has become an “Electing Holder” by returning a duly completed and signed Notice and Questionnaire to the Company by the deadline for response set forth therein (or the Holder has delivered a Notice and Questionnaire after the deadline for response and the managing underwriters, if any, promptly, and (if requested by any Company has named such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made Holder as a selling securityholder in the Registration Statement, ) and has provided any other information reasonably requested in writing by the Prospectus or any document incorporated therein by reference untrue or which requires Company.
(ii) Each Electing Holder agrees to notify the making Company as promptly as practicable of any changes inaccuracy or change in information previously furnished by such Electing Holder to the Registration Statement, Company 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 such Electing Holder or such Electing Holder’s intended method of disposition of such Registrable Securities or omits to state any document incorporated material fact regarding such Electing Holder or such Electing Holder’s intended method of disposition of such Registrable Securities required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(d) make every reasonable effort , and promptly to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating furnish to the plan of distribution Company (i) any additional information required to correct and update any previously furnished information or required so that such Prospectus shall not contain, with respect to such Registrable Securities, including, without limitation, information with respect to the number 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 (Electing Holder 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;
misleading and (lii) cause all Registrable Securities covered by any other information regarding such Electing Holder and the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority distribution of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters required to be disclosed in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered intoany Registration Statement under applicable law, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement SEC comments or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may request from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts to shall effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as possible:
(a) prepare Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form Form under the Securities Act, which form shall be Act available for the sale of the Registrable Securities by the holders thereof in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use best efforts to cause each such Registration Statement to become effectiveeffective and remain effective as provided herein; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, thereto (including documents that would be incorporated or deemed to be incorporated therein by reference) the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement Statement, their counsel and the managing underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders holders, their counsel and such underwriters, and the Company will shall not file any such Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents which, upon filing, would be incorporated or deemed to be incorporated by reference therein) to which the holders of a majority of the Registrable Securities covered by such Registration Statement Statement, their counsel or the underwritersmanaging underwriter, if any, shall reasonably object;object on a timely basis.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldnecessary; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify Notify the selling holders of Registrable Securities Securities, their counsel and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission SEC or any other Federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4iv) if at any time the representations and warranties of the Company contained in any agreement contemplated by paragraph Section 5(m) (oincluding any underwriting agreement) below cease to be true and correct, (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6vi) of the happening of any event which makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or which requires the making of any changes in a Registration Statement, Prospectus or documents so that, in the case of the Registration Statement, the Prospectus it will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (vii) of the Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(d) make Use every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest possible moment;.
(e) if If requested by the managing underwriter underwriters, if any, or underwriters or a any holder of Registrable Securities being sold in connection with an underwritten offeringsold, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters underwriters, if any, and the holders of a majority of the Registrable Securities being sold such holder agree should be included therein relating to the plan of distribution with respect to such Registrable Securitiesas may be required by applicable law, including, without limitation, information with respect to the number 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 underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;, and (iii) supplement or make amendments to any Registration Statement.
(f) furnish Furnish to each selling holder of Registrable Securities Securities, their counsel and each managing underwriter, if any, without charge, at least one signed copy of the Registration Statement or Statements and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference or deemed incorporated therein by reference and all exhibits (including those previously furnished or incorporated by reference);) at the earliest practicable time under the circumstances before the filing of such documents with the SEC.
(g) deliver Deliver to each selling holder of Registrable Securities Securities, their counsel and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of the such Prospectus or any each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;.
(h) prior Prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel 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 Blue Sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing writing; keep each such registration or qualification (or exemption therefrom) effective during the period such Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided provided, however, that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject;.
(i) cooperate 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 sold, which certificates shall not bearing bear any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters underwriters, if any, may request designate at least two business days prior to any sale of Registrable Securities to the underwriters;.
(j) use its best efforts to cause Cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;.
(k) upon Upon the occurrence of any event contemplated by paragraph (c)(65(c)(vi) or 5(c)(vii) above, prepare a supplement or posteffective post-effective amendment to the each Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities being sold thereunder, the such Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) cause Cause all Registrable Securities covered by the such Registration Statement to be (i) listed on each securities exchange exchange, if any, on which similar securities issued by the Company are then listed listed, or (ii) authorized to be quoted on the National Association of Securities Dealers Automated Quotation System ("Nasdaq") or the National Market System of Nasdaq if the securities so qualify; in each case, if requested by the holders of a majority of such shares of the Registrable Securities covered by such Registration Statement or the managing underwriters, if any;.
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter Enter into such agreements (including an underwriting agreementagreement in form, scope and substance as is customary in underwritten offerings) and take all such other actions in connection therewith in order (including those requested by the managing underwriters, if any, or the holders of a majority of the Registrable Securities being sold) to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration, (1i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) use its best efforts to 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 managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder of Registrable Securities and each of the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwritersofferings; (3iii) use its best efforts to obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Company (and, if necessary, any other certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data is, or is required to be, included in the Registration Statement), addressed to the each selling holders holder of Registrable Securities and each of the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5iv) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold sold, their counsel and the managing underwriters, if any, to evidence compliance with the continued validity of the representations and warranties of the Company and its subsidiaries made pursuant to clause (ki) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or or, as and to the extent required thereunder;.
(on) make Make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesSecurities being sold, any underwriter participating in any disposition pursuant to such registrationof Registrable Securities, if any, and any attorney or accountant retained by the sellers such selling holders or underwriter, all financial and other records, pertinent corporate documents and properties of the CompanyCompany and its subsidiaries, and cause the Company's officers, directors and employees of the Company and its subsidiaries to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, however, that any records, information or documents that are designated by the Company in writing as confidential at the time of delivery of such records, information or documents shall be kept confidential by such Persons unless (i) such records, information or documents are in the public domain or otherwise publicly available, (ii) disclosure of such records, information or documents is required by court or administrative order;order or is necessary to respond to inquiries of regulatory authorities or (iii) disclosure of such records, information or documents, in the opinion of counsel to such Person, is otherwise required by law (including, without limitation, pursuant to the requirements of the Securities Act).
(po) otherwise use its best efforts to comply Comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings 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 45 days after the end of any 12-month period (or 90 days, days after the end of any 12-month period if such period is a fiscal year) (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or best efforts underwritten offering, or and (2ii) if not sold to underwriters in such an offering, beginning with commencing on the first month day of the first fiscal quarter of the Company's first fiscal quarter commencing , after the effective date of the a Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities Registrable Securities as the Company may may, from time to time time, reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k5(c)(ii), 5(c)(iii), 5(c)(v), 5(c)(vi) or 5(c)(vii) hereof, such holder will forthwith discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k5(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings which that are incorporated or deemed to be incorporated by reference in the such Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Takedown pursuant to Section 3 hereofthe provisions of this Agreement, the Company will shall use its best commercially reasonable efforts to effect such registration to permit the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously soon as possiblereasonably practicable and as applicable:
(a) subject to Section 2, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become be declared effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by Registrable Securities subject thereto for a period ending on the earlier of (i) 6 months after the effective date of such Registration Statement during and (ii) the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of date on which all the Registrable Securities covered thereby not being able subject thereto have been sold pursuant to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableRegistration Statement;
(c) notify the selling holders of Registrable Securities and the managing underwriterswithin a reasonable time before filing such Registration Statement, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements thereto with the Commission, furnish to the Registration Statement or the Prospectus or for additional information, (3) of the issuance one counsel selected by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should included in such Registration Statement, Prospectus or amendments or supplements thereto copies of such documents proposed to be included therein relating filed, which documents shall be subject to the plan review, comment and approval of distribution with respect to such counsel;
(d) notify each selling holder of Registrable Securities, includingpromptly after the Company receives notice thereof, without limitation, information with respect to of the number of Registrable Securities being sold to time when such underwriters, the purchase price being paid therefor by such underwriters and with respect Registration Statement has been declared effective or a supplement 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 Prospectus forming a part of such Prospectus supplement or post-effective amendment as soon as notified of Registration Statement has been filed with the matters to be incorporated in such Prospectus supplement or post-effective amendmentCommission;
(fe) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy such number of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus included in such Registration Statement (including each preliminary prospectusProspectus) and any amendment or supplement thereto (in each case including all exhibits and documents incorporated by reference therein) and such other documents as such Persons seller may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(hf) prior use its commercially reasonable efforts to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or “blue sky sky” laws of such jurisdictions as any seller or underwriter selling holder reasonably requests in writing and do any and all other acts or and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch holders; provided provided, that the Company will shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified business, subject itself to general taxation or to take any action which would subject it consent to general service of process in any such jurisdiction where it is would not then otherwise be required to do so subjectbut for this Section 5(f);
(ig) cooperate with the notify each 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition holder of such Registrable Securities;
(k) upon , at any time when a Prospectus relating thereto is required to be delivered under the occurrence Securities Act, of the happening of any event contemplated by paragraph (c)(6) abovethat would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, the Company shall prepare a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the such Registrable Securities, the such Prospectus will shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(oh) make available for inspection by a representative any selling holder of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney attorney, accountant or accountant other agent retained by any such holder or underwriter (collectively, the sellers or underwriter“Inspectors”), all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant Inspector in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderRegistration Statement;
(pi) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed;
(k) in connection with an underwritten offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, making appropriate officers of the Company available to participate in “road show” and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Securities));
(l) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, holders an earnings statements satisfying statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act, Act and Rule 158 under the Securities Act or any successor rule thereto) no later than 45 thirty (30) days after the end of any the 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month day of the Company's ’s first full fiscal quarter commencing after the effective date of the such Registration Statement, which statements earnings statement shall cover said 12-month periodsperiod, and which requirement will be deemed to be satisfied if the Company timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) furnish to each selling holder of Registrable Securities and each underwriter, if any, with (i) a written legal opinion of the Company’s outside counsel, dated the closing date of the offering, in form and substance as is customarily given in opinions of registrants’ counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of any post-effective amendment to the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a “comfort” letter signed by the Company’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(n) without limiting Section 5(f), use its commercially reasonable efforts to cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the holders of such Registrable Securities to consummate the disposition of such Registrable Securities in accordance with their intended method of distribution thereof;
(o) notify the holders of Registrable Securities promptly of any request by the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(p) advise the holders of Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(q) cooperate with the holders of the Registrable Securities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of The Depository Trust Company (“DTC”);
(r) not later than the effective date of such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable transfer agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with DTC; provided, that the Company may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of DTC;
(s) take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to the Company, the Company will take all commercially reasonable action to make any such prohibition inapplicable; and
(qt) promptly prior otherwise use its commercially reasonable efforts to take all other steps necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 1 contract
Samples: Registration Rights Agreement (Quintana Energy Services Inc.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofof the Company under Sections 3, 4 and 5, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements with respect to such Registrable Securities on any appropriate registration form under adopted by the Securities ActSEC for which the Company then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use reasonable best efforts to cause such Registration Statement to become and remain effective; provided that before that, at least five Business Days prior to filing a Registration Statement or Prospectus or any amendments amendment or supplements supplement thereto, the Company will shall furnish to a single counsel selected by the holders Holders of a Majority of the Registrable Securities covered by included or to be included in such Registration Statement and the underwriters, if any, copies of all such documents Registration Statement or Prospectus (or amendment or supplement) as proposed to be filedfiled (including, upon the request of such counsel, documents to be incorporated by reference therein) which documents will shall be subject to the reasonable review and comments of such holders counsel and underwritersthe Holders of the Registrable Securities included or to be included in such Registration Statement during such five-Business-Day period, and the Company will shall not file any Registration Statement or amendment thereto or Statement, any Prospectus or any amendment or supplement thereto (or any such documents incorporated by reference) containing any statements with respect to any such Holder to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, Holder shall reasonably objectobject in writing;
(b) prepare and file with the SEC such amendments and post-effective amendments to the such Registration Statement and such amendments and supplements to the Prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations thereunder necessary to keep the such Registration Statement effective for until the applicable period, or such shorter period earlier of (i) the date on which will terminate when all the Registrable Securities covered by such Registration Statement cease to be Registrable Securities or have been sold; sold or withdrawn and (ii) subject to Sections 9(e) and 9(k), (x) in the case of the Shelf Registration, until the third anniversary of the date of initial effectiveness of the Shelf Registration Statement, plus any Suspension Periods (which shall be added to such three-year period), or (y) in the case of a Registration Statement filed pursuant to Section 4 which does not contemplate an Underwritten Offering, for at least 120 days or (z) in the case of a Registration Statement filed pursuant to Section 4 which contemplates an Underwritten Offering, for at least 120 days plus such longer period (not to exceed 90 days after the 120th day) as, in the opinion of counsel for the underwriter or underwriters of such Underwritten Offering, is required by law for the delivery of a Prospectus in connection with the sale of Registrable Securities by an underwriter or dealer, and cause the Prospectus to be supplemented by any required Prospectus supplement, and as so amended and supplemented to be filed pursuant to Rule 424 under the Securities Act; , and otherwise use reasonable best efforts to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during until such time as is specified in clause (i) or (ii) above, as the case may be;
(c) furnish to each Holder of such Registrable Securities such number of copies of such Registration Statement and of each amendment and post-effective amendment thereto, any Prospectus or Prospectus supplement and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder (the Company hereby consenting to the use (subject to the limitations set forth in Section 10(b)) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(d) use reasonable best efforts to register or qualify such Registrable Securities covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions as each Holder shall reasonably request, and to do any and all other acts and things which may be reasonably necessary to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder, except that the Company shall not be required for any such purpose to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 9(d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction, or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Holder of any such Registrable Securities covered by such Registration Statement, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act within the applicable period referred to in accordance with Section 9(b), that the intended method Company has become aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of material fact or methods omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of distribution by the sellers thereof set forth circumstances then existing (the period during which the Holders are required in such case pursuant to Section 10(b) to refrain from effecting public sales or distributions of Registrable Securities referred to herein as a "Section 9(e) Period"), and prepare and furnish to such Holder, as soon as reasonably practicable, without charge to such Holder, a reasonable number of copies of an amendment to such Registration Statement or supplement to such related Prospectus as may be necessary so that, as thereafter delivered to the Prospectuspurchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; provided that if the Company gives such notice, the Company shall not be deemed to have used its best efforts to keep a extend the period during which such Registration Statement shall be maintained effective during (including the applicable period if it voluntarily takes any action that would result periods referred to in selling holders Section 9(b)) by the number of days in the Section 9(e) Period;
(f) promptly notify each Holder of Registrable Securities covered thereby not being able to sell by such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Registration Statement at any time,
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, filed and, with respect to the Registration Statement or any post-effective amendment, when the same Registration Statement or such post-effective amendment has become effective, ;
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission SEC of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation of any proceedings for that purpose, such purposes; and
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iii) of the receipt by of the Company of any written notification with respect to of the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose;
(6g) make available to its stockholders, as soon as reasonably practicable, an earnings statement which shall satisfy the provisions of Section 11(a) of the happening Securities Act, provided that the Company shall be deemed to have complied with this Section 9(g) if it has complied with Rule 158 under the Securities Act;
(h) if the registration involves an Underwritten Offering, enter into a customary underwriting agreement and in connection therewith:
(i) make such representations and warranties to the underwriters in form, substance and scope as are customarily made by issuers to underwriters in comparable Underwritten Offerings;
(ii) use reasonable best efforts to obtain opinions of counsel to the Company (in form, scope and substance reasonably satisfactory to the managing underwriters), addressed to the underwriters, and covering the matters customarily covered in opinions requested in comparable Underwritten Offerings;
(iii) use reasonable best efforts to obtain "cold comfort" letters and bring-downs thereof from the Company's independent certified public accountants addressed to the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by independent accountants in connection with Underwritten Offerings; and
(iv) deliver such documents and certificates as may be reasonably requested by the managing underwriters to evidence compliance with any event which makes any statement made customary conditions contained in the underwriting agreement;
(i) cooperate with the Holders of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing the securities to be sold under such Registration Statement, and enable such securities to be in such denominations and registered in such names as the Prospectus managing underwriter or any document incorporated therein by reference untrue underwriters or which requires the making of any changes in the Registration Statementagents, the Prospectus if any, or any document incorporated therein by reference in order to make the statements therein not misleadingsuch Holders, may request;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(ej) if reasonably requested by the managing underwriter or underwriters or a holder Holder of Registrable Securities being sold in connection with an underwritten offeringUnderwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriters and the holders Demand Holders of a majority Majority of the Registrable Securities being sold by all Demand Holders 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 number 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 Underwritten Offering of the Registrable Securities to be sold in such offering; offering and make all required filings of such Prospectus supplement or post-effective amendment as soon as upon being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(fk) furnish to each selling holder in the event of Registrable Securities and each managing underwriter, without charge, at least one signed copy the issuance of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement and Statement, or of any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment order suspending or supplement thereto as such Persons may reasonably request; the Company consents to preventing the use of the any related Prospectus or suspending the qualification of any amendment or supplement thereto by each of the selling holders of Registrable Securities and included in the underwritersRegistration Statement for sale in any jurisdiction, if any, in connection with use reasonable best efforts to obtain at the offering and sale of earliest practicable time the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification withdrawal of such Registrable Securities for offer stop order or other order (the period between the issuance and sale under the securities withdrawal of any stop order or blue sky laws of such jurisdictions other order referred to herein as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementa "Section 9(k) Period"); provided that the Company shall extend the period during which such Registration Statement will not be required maintained effective (including the periods referred 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 in any such jurisdiction where it is not then so subject;
(iSection 9(b)) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable number of days in the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kSection 9(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleadingPeriod;
(l) use reasonable best efforts to cause all Registrable Securities Conversion Shares, Warrant Shares and Commitment Fee Shares covered by the such Registration Statement to be listed on each any securities exchange or automated quotation system on which similar securities issued by the Company Common Stock is then listed, if such Conversion Shares, Warrant Shares and Commitment Fee Shares are not already so listed and if such listing is then listed if requested by permitted under the holders of a majority rules of such Registrable Securities securities exchange or the managing underwriters, if anyautomated quotation system;
(m) in the case of an Underwritten Offering, cause the senior executive officers of the Company to participate in the customary "road show" presentations that may be reasonably requested by the lead managing underwriter in any such Underwritten Offering and otherwise to cooperate with and participate in customary selling efforts related thereto;
(n) upon the request of any Holder, promptly amend any Shelf Registration Statement or take such other action as may be necessary to de-register, remove or withdraw all or any portion of the Holder's Registrable Securities from a Shelf Registration Statement, as requested by such Holder;
(o) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and and, unless such Registrable Securities shall be registered in book-entry form, provide the applicable trustee(s) or transfer agent(s) agent and registrar for such Registrable Securities with printed certificates for the Registrable Securities Securities, which are certificates shall be in a form eligible for deposit with Depositary The Depository Trust Company;
(np) enter into such agreements (including an underwriting agreement) provide and take cause to be maintained a transfer agent and registrar for all such other actions in connection therewith in order to expedite or facilitate Registrable Securities covered by the disposition applicable Registration Statement from and after a date not later than the effective date of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Registration Statement;
(1q) make such representations available upon reasonable notice at reasonable times and warranties to for reasonable periods for inspection by one representative appointed by 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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders Holders of a majority Majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the applicable Registration Statement, by any managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement underwriter or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter underwriters participating in any disposition Underwritten Offering to be effected pursuant to such registrationRegistration Statement, and by any attorney attorney, accountant or accountant other agent retained by the sellers such Holders or any such managing underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available during normal business hours to discuss the business of the Company and to supply all information reasonably requested by any such representative, underwriter, attorney Holders or accountant managing underwriter or agent thereof in connection with such registration; provided that any records, information or documents that are designated by the Company in writing Registration Statement as confidential shall be kept confidential by necessary to enable such Persons unless disclosure of such records, information or documents is required to exercise their due diligence responsibility (subject to the entry by court or administrative ordereach Person referred to in this Section 9(q) into customary confidentiality agreements in a form reasonably acceptable to the Company);
(pr) otherwise use its best efforts to comply with all applicable rules and regulations if requested in writing by Holders holding a Majority of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters included in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements prepare and file with the SEC amendments and post-effective amendments to such Registration Statement and amendments and supplements to the Prospectus used in connection with such Registration Statement as shall cover said 12be necessary to enable any transferee of Registrable Securities included in such Registration Statement who becomes a Holder under this Agreement to resell such Holder's Registrable Securities pursuant to such Registration Statement, to the extent that such amendments, post-month periodseffective amendments and supplements shall be required for such transferee-Holders to be named as selling securityholders in such Registration Statement and Prospectus; and
(qs) promptly prior use reasonable best efforts to take all other steps necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing registration of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration ’s obligations pursuant to under Section 3 hereof3, the Company will shall use its best all reasonable efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will shall as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any an appropriate form under the Securities Actregistration form, which Registration Statement shall comply as to form shall be available for in all material respects with the sale requirements of the Registrable Securities in accordance with the intended method applicable form and include or methods of distribution thereof and shall include incorporate by reference all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDtherewith or incorporated by reference therein, and in either case use best all reasonable efforts to cause such Registration Statement to become effectiveeffective and remain effective in accordance with Section 3(b); provided provided, however, that before filing a Registration Statement or Prospectus or any amendments amendment or supplements supplement thereto, including information incorporated by reference after the initial filing of the Registration Statement, the Company will shall furnish to one firm of counsel for the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents in substantially the form proposed to be filedfiled (including, upon request, any and all exhibits thereto), which documents will shall be subject to the reasonable and prompt review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the such Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will shall terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and otherwise take all such actions as may be necessary to cause the Registration Statement to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof Selling Holders set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, Selling Holders promptly, and (if requested by any such Personperson) confirm such advice in writingwriting promptly, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed, and, with respect to the such Registration Statement or any post-effective amendmentamendment thereto, when the same has become becomes effective, (2ii) of any comments of the SEC or any state securities authority with regard to the Registration Statement and of any request by the SEC or any state securities authority for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3iii) of the issuance by the Commission SEC or any state securities authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) 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 purpose, (v) in the case of any shelf Registration Statement, if between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company contained in any securities sale agreement or other similar agreement, relating to the offering were as of the date made not true and correct in all material respects and (6vi) of the happening of any event which or the discovery of any facts that makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue in any material respect or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momenttime;
(e) if requested by unless available for review on the managing underwriter SEC’s or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringthe Company’s internet website, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterSelling Holder, without charge, at least one signed copy of the Registration Statement and Statement, any amendment (including any post-effective amendment amendment) thereto, including financial statements and schedules, all documents Documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gf) unless available for review on the SEC’s or the Company’s internet website, deliver to each selling holder of Registrable Securities and the underwriters, if anySelling Holder, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(hg) prior to any public offering of Registrable Securities, use the Company’s reasonable efforts to (i) register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, Selling Holders and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the state securities or blue sky laws of such jurisdictions one (1) jurisdiction as any seller or underwriter the Selling Holder reasonably requests in writing and (ii) do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions jurisdiction of the Registrable Securities covered by the Registration Statement; provided that the Company will shall 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 taxation in any such jurisdiction where it is not then so subject;
(ih) cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, Selling Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing without any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriters Selling Holders may request at least within two (2) business days prior to any sale of Registrable Securities to the underwriterseffective date of the Registration Statement;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(ki) upon the occurrence of any event contemplated by clause (vi) of paragraph (c)(6c) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will 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;
(lj) use all reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be listed on an each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwritersexchange, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in on which the Purchase Agreement; (2) obtain opinions of counsel to Common Stock is then listed or on the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwritersNasdaq National Market, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement Common Stock is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderthen traded thereon;
(ok) make available for inspection by a representative of the holders Selling Holders, one firm of a majority attorneys and one firm of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant accountants retained by the sellers Selling Holder or underwriterHolders, all financial and other records, records and all pertinent corporate documents and properties of the CompanyCompany as shall be reasonably requested by them, and cause the Company's ’s officers, directors and employees to be reasonably available for discussions with and to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons persons unless disclosure of such records, information or documents is required by court or administrative orderorder or becomes publicly available and if the Company so elects, need not be disclosed by the Company unless each such person signs a confidentiality agreement reasonably satisfactory to the Company in which the related Selling Holder agrees to be responsible for such person’s breach of confidentiality on terns reasonably satisfactory to the Company;
(pl) otherwise use its best all reasonable efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, as provided in Rule 158 or otherwise, an earnings statements statement satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and;
(qm) promptly prior to after the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), unless such document is available to be reviewed on the SEC’s or the Company’s internet website, provide copies of such document to counsel to the selling holders of Registrable Securities Selling Holders and to the managing underwriter or underwriters, if any, make ; and
(n) otherwise reasonably cooperate with the Company's representatives available for discussion Selling Holders to carry out the intent of such document and make such changes in such document prior this Agreement. It shall be a condition precedent to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The obligations of the Company may require each seller of to take any action pursuant to this Agreement with respect to the Registrable Securities as to which of any registration is being effected to furnish to Initiating or Selling Holder that such Initiating or Selling Holder cooperates with the Company in preparing such information regarding the distribution of such securities as the Company may from time to time reasonably request in writingregistration. Each holder of Registrable Securities Selling Holder agrees by acquisition of such Registrable Securities that, that upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k4(c)(vi) hereof, such holder will shall forthwith discontinue disposition of such Registrable Securities until such holder's ’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof4(i), or until it is advised in writing (the "“Advice"”) by the Company that the use of the Prospectus may be resumed, and has has, unless such document is available to be reviewed on the SEC’s or the Company’s internet website, received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will shall deliver to the Company (at the Company's ’s expense) all copies, other than permanent file copies then in such holder's ’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such the Registration Statement in Section 3 shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(64(c)(vi) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement Selling Holder shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k4(i) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Soon Shiong Patrick)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, Whenever the Company will is required by the provisions of this Agreement to use its best efforts to effect such the registration to permit of any Stock under the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofAct, and pursuant thereto the Company will will, as expeditiously as possible:
(aA) prepare and file with the SEC, as soon as practicable, Securities and Exchange Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC respect to be filed therewith, cooperate and assist in any filings required to be made with the NASD, such Stock and use its best efforts to cause such Registration Statement to become effective; and remain effective for a period of not less than nine months or more than one year (or such shorter period as actually required to sell all shares registered thereunder pursuant thereto), provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to counsel for the holders Holders of the Registrable Securities covered by Stock included in such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectcounsel;
(bB) prepare and file with the SEC Securities and Exchange Commission such amendments and post-effective amendments supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, a period of not less than nine months or more than one year (or such shorter period which will terminate when as actually required to sell all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus shares registered thereunder pursuant thereto) and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the sale or other disposition of all securities Securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers Sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(cC) notify the selling holders furnish to each Seller such number of Registrable Securities copies of such Registration Statement, each amendment and the managing underwriterssupplement thereto, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to included in the Registration Statement or any post-effective amendment(including each preliminary Prospectus), when the same has become effectiveand such other documents, (2) of any as such Seller may reasonably request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make facilitate the statements therein not misleadingpublic sale or other disposition of the Securities owned by such Seller;
(dD) make use every reasonable effort to obtain register or qualify all the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale Registration Statement under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter each Seller shall reasonably requests in writing request, and do any and all other acts and things which may be necessary under such securities or things necessary or advisable blue sky laws to enable such Seller to consummate the public sale or other disposition in such jurisdictions jurisdiction of the Registrable Securities owned by such Seller covered by the such Registration Statement; provided provided, however, that the Company will shall not be required to (i) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it is would not then so qualified otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction, or to take any action which would subject it (iii) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(iE) cooperate with notify each Seller at any time when a Prospectus relating to the selling holders Securities of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities such Seller covered by such Registration Statement is required to be sold and not bearing any restrictive legends; and enable such Registrable delivered under the Securities to be in such denominations and registered in such names as Act, of the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence happening of any event contemplated by paragraph (c)(6) aboveas a result of which the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading, and at the request of any such Seller, prepare a supplement or posteffective amendment to the Registration Statement or the related such Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesSecurities covered by such Registration Statement, the such Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(lF) cause all Registrable such Securities covered by the such Registration Statement to be listed on each securities exchange on which similar securities issued by Securities of the Company same class are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anylisted;
(mG) provide a transfer agent and registrar for Common not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nH) enter into such customary agreements (including an underwriting agreementagreement in customary form) and take all such other actions as the Holders of at least a majority of the Stock included in connection therewith such Registration Statement pursuant to the provisions of this Agreement or underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited towithout limitation, those set forth in the Purchase Agreement; (2) obtain opinions effecting a stock split or a combination of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereundershares);
(oI) make available for inspection by a representative of the holders of a majority of the Registrable Securitiesany Seller, any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney attorney, accountant or accountant other agent retained by any such Seller who is the sellers Holder of at least 10% of the Stock included in such registration pursuant to the provisions of this Agreement or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representativeSeller, underwriter, attorney attorney, accountant or accountant agent in connection with such registrationRegistration Statement; provided that any records, information or documents that are designated by and (J) obtain a cold comfort letter from the Company Company's independent public accountants and/or a legal opinion letter from the Company's counsel in writing as confidential shall be kept confidential by customary form and covering such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations matters of the SECtype customarily covered by cold comfort letters or legal opinion letters, and make generally available as the case may be, as the underwriters or the Holders of at least a majority of the Stock included in such Registration Statement pursuant to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may this Agreement reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Caraco Pharmaceutical Laboratories LTD)
Registration Procedures. In connection with Whenever the Company's registration obligations holders of Registrable Securities have requested that any Registrable Securities be registered pursuant to Section 3 hereofthis Agreement, the Company will Corporation shall use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Corporation shall as expeditiously as possible:
(a) A. prepare and file with the SEC, as soon as practicablenot later than six months after receipt of a request to file a Registration Statement for a Demand Registration, a Registration Statement on a form for which the Corporation then qualifies which is satisfactory to the Corporation and the holders of a majority of the Registrable Securities being registered (unless the offering is made on an underwritten basis, including on a best efforts underwriting basis, in which event the managing underwriter or Registration Statements on any appropriate underwriters shall determine the form under the Securities Act, to be used) and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its best efforts to cause such Registration Statement to become effective; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, including documents incorporated by reference after the Company will initial filing of the Registration Statement, the Corporation shall furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will Corporation shall not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) B. prepare and file with the SEC such amendments and post-post- effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable perioda period of not less than six months, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldsold or withdrawn; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) C. notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, ,
(1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, ;
(2ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, ;
(3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, ;
(4iv) if at any time the representations and warranties of the Company Corporation contemplated by paragraph (o) Paragraph O below cease to be true and correct, correct in all material respects;
(5v) of the receipt by the Company 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 and purpose; and
(6vi) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) D. make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) E. if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringsold, promptly immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree and their respective counsel reasonably conclude should be included therein relating in the Registration Statement, so that such Registration Statement conforms in both form and substance to the plan requirements of distribution with respect to such Registrable Securitiesthe Securities Act, including, including without limitation, information limitation with respect to the number 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 posteffective amendment;
F. promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (fafter initial filing of the Registration Statement) provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Corporation's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request;
G. furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) H. deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; request (and the Company Corporation hereby consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto);
(h) I. prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided provided, however, that the Company will Corporation shall 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 in any such jurisdiction where it is not then so subject;
(i) J. 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) K. use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) L. upon the occurrence of any event contemplated by paragraph clause (c)(6vi) aboveof Paragraph C of this Article VI, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will 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;
(l) M. cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company Corporation are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) N. provide a transfer agent and registrar for all Registrable Securities and a CUSIP number for all Registrable Securities, in each case not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companysuch registration statement;
(n) O. enter into such agreements (including an underwriting agreementagreement reasonably satisfactory to the Corporation, containing customary representations, warranties and agreements) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration registration:
(1i) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, in such form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, including but not limited to, those set forth in the Purchase Merger Agreement; ;
(2ii) obtain opinions of counsel to the Company Corporation and updates thereof (which counsel and opinions (opinions, in form, scope and substance) , shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; ;
(3iii) obtain "cold comfort" letters and updates thereof from the CompanyCorporation's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by to underwriters in connection with primary underwritten offerings; ;
(4iv) if an underwriting agreement is entered into, cause the same shall to set forth in full the indemnification and contribution provisions and procedures of Section 8 hereof Article VIII hereof, or language at least as favorable to the holders of the Registrable Securities, with respect to all parties to be indemnified pursuant to said SectionArticle; and and
(5v) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (ki) above of this Paragraph O and with any customary conditions contained in the underwriting agreement or other agreement entered into by the CompanyCorporation. The obligations under this Paragraph O above shall be done performed at each closing under such underwriting or similar agreement or as and to the extent required thereunder;.
(o) P. make available for inspection by a representative of the holders sellers of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationregistration statement, and any attorney attorney, accountant or accountant other agent retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the CompanyCorporation, and cause the CompanyCorporation's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney attorney, accountant or accountant agent solely for use in connection with such registrationregistration statement; provided provided, however, that any records, information or documents that are designated by the Company Corporation in writing as confidential shall be kept confidential by such Persons unless disclosure of pursuant to such records, information or documents is required by court or administrative orderreasonable confidentiality agreements as the Corporation may request;
(p) Q. otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12twelve-month period (or 90 days, if such period is a fiscal year) ): (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts an underwritten offering, or (2) or, if not sold to underwriters in such an offering, ; and (ii) beginning with the first month of the CompanyCorporation's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12twelve-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Garfinkle Norton Et Al)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, any "underwritten registration," the Company will use its best efforts to effect such the "underwritten offering" of the Piggyback Securities for which registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofis requested, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with the SEC, as soon as practicablepractible, a Registration Statement or Registration Statements relating to the underwritten offering on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities Company's Common Stock in accordance with the intended method or methods of distribution thereof and shall include all financial statements and other information required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for until the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such distribution of the Eligible Common Stock under the Registration Statement have been soldis complete (which period shall not exceed 90 days from the date the Registration Statement is declared effective); cause the Prospectus to be supplemented by any required Prospectus prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement pursuant to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablean underwritten offering;
(c) notify the selling holders of Registrable Securities Executive and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice in writing, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement has become effective and when any posteffective amendment or any post-effective amendment, when the same has supplements thereto become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4iii) if at any time between the effective date of the Registration Statement and the closing of the sale of the securities covered thereby, the representations and warranties of the Company contemplated by paragraph II (oj) below cease to be true and correct, (5iv) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities Company's Common Stock for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6v) of the happening of any event which makes any statement made in the Registration Statement, Statement or the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, Statement or the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momenttime;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities Executive and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders the Executive or underwriters may reasonable request;
(f) upon request, furnish to each managing underwriter, without charge, at least one signed copy of the Registration Statement and any posteffective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference); and furnish to the Executive, without charge, at least one conformed copy of each Registration Statement and any posteffective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(g) deliver to the Executive and each underwriter, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Executive or underwriter may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by the Executive and the underwriters, in connection with the offering and sale of the Common Stock covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of the Company's Common Stock, use its best efforts to register or qualify or cooperate with the Executive, the underwriters and their respective counsel in connection with the registration or qualification of such Common Stock for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the underwriters to consummate the disposition in such jurisdiction of the Common Stock covered by the Registration Statement; PROVIDED that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified; (ii) subject itself to taxation in any such jurisdiction, or (iii) take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the Executive and the managing underwriters to facilitate the timely preparation and delivery of certificates representing the Common Stock to be sold and not bearing any restrictive legends; and enable such Common Stock to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of the Common Stock to the underwriters;
(j) as promptly as practicable following the occurrence of any event contemplated by paragraph II (c) (v) above, use its best efforts to prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated by reference or file any other required document so that, as thereafter delivered to the purchasers of the Common Stock, 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, in the light of the circumstances under which they were made, not misleading;
(k) use its best efforts to cause all the Common Stock covered by the Registration Statement to be listed on each securities exchange or automated quotation system, if any, on which similar securities issued by the Company are then listed;
(l) enter into an underwriting agreement with an underwriter or underwriters providing for the sale of such Common Stock in an underwritten offering which shall be customary in form, substance and scope and shall contain customary requirements for representations, warranties, covenants and opinions of counsel; and use its best efforts to obtain any customary opinions of counsel or customary accountants' "cold comfort" letters referred to in such underwriting agreement, and enter into such other customary agreements and take all such other reasonable actions in connection therewith to expedite or facilitate the disposition of the common stock as contemplated by such agreements;
(m) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC. The Company may require each seller of Registrable Securities as to which any registration is being effected the Executive (i) to furnish to the Company such information regarding the distribution of such securities the Piggyback Securities as the Company may from time to time reasonably request in writingwriting and (ii) to enter into an underwriting agreement in the form contemplated by Section I(i). Each holder of Registrable Securities The Executive agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(kII (c) (v) hereof, such holder the Executive will forthwith discontinue the offering and disposition of Registrable the Piggyback Securities until such holderExecutive's receipt of the copies of the supplemented supplemental or amended Prospectus contemplated by Section 6(kII (j) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder the Executive will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holderthe Executive's possession, of the Prospectus covering such Registrable Securities Common Stock current at the time of receipt of such notice. In the event the Company shall give any such noticenotice to suspend the offering and disposition of the Common Stock, the time periods regarding the maintenance of such the applicable Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6II (c) (v) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement the Executive shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(kII (j) hereof or the Advice. EXHIBIT B BENEFITS TO BE PROVIDED TO THE EXECUTIVE -------------------------
(1) Group medical and dental, life, executive life, accident and disability insurance, all as set forth below:
a) LIFE INSURANCE - Retain coverage under policy which Company purchased for the Executive in 1999.
Appears in 1 contract
Registration Procedures. In connection with the Company's obligations of the Company with respect to any registration obligations pursuant to Section 3 hereofthis Agreement, the Company will shall use its best commercially reasonable efforts to effect such or cause to be effected the registration of the Registrable Shares under the Securities Act to permit the sale of such Registrable Securities Shares by the Holder or Holders in accordance with the Holders' intended method or methods of distribution thereofdistribution, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with the SECCommission, as soon as practicablespecified in this Agreement, a Registration Statement or Registration Statements on any appropriate form under the Securities ActStatement, which Registration Statement shall comply as to form shall be available for in all material respects with the sale requirements of the Registrable Securities in accordance with the intended method or methods of distribution thereof applicable form and shall include all financial statements required by the SEC Commission to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement effective and remain effective for two years or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of until all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectShares have been sold;
(b) subject to Section 3(i) hereof, prepare and file with the SEC Commission such amendments and post-effective amendments to the each such Registration Statement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the each such Prospectus to be supplemented by any required Prospectus prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 or any similar rule that may be adopted under the Securities Act; and comply with the provisions of the Securities Act applicable to the Company with respect to the disposition of all securities covered by such Registration Statement during the applicable period period;
(c) furnish to the Holder of Registrable Shares without charge as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder may reasonably request, in accordance with order to facilitate the intended method public sale or methods other disposition of distribution the Registrable Shares;
(d) use commercially reasonable efforts to register or qualify, or obtain an exemption from registration or qualification for, all Registrable Shares by the sellers thereof set forth time the applicable Registration Statement is declared effective by the Commission under all applicable state securities or "blue sky" laws of such jurisdictions as the Holder of Registrable Shares covered by a Registration Statement shall reasonably request in writing, keep each such registration or qualification or exemption effective during the period such Registration Statement is required to be kept effective and do any and all other acts and things that may be reasonably necessary or supplement advisable to enable such Holder to consummate the Prospectusdisposition in each such jurisdiction of such Registrable Shares owned by such Holder; provided, however, that the Company shall not be deemed required to have used its best efforts (i) qualify generally to keep do business in any jurisdiction or to register as a broker or dealer in such jurisdiction where it would not otherwise be required to qualify but for this Section 3(d), (ii) subject itself to taxation in any such jurisdiction or (iii) submit to the general service of process in any such jurisdiction; provided, further, that if the Company fails to list the Registrable Shares on a national stock exchange or qualify for quotation on an automatic quotation system at or prior to the time the Registration Statement is declared effective during by the applicable period if Commission because it voluntarily takes any action that would result fails to meet requirements for such listing or quotation regarding the number of holders, the obligation in selling holders of this Section 3(d) shall not require the Company to register or qualify the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by Shares in any jurisdiction where the Company in good faith and for valid business reasonsreasonably concludes, including based upon the advice of securities counsel, that such registration or qualification would require unreasonable effort (including, without limitation limitation, amendments to the acquisition Company's charter or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablebylaws) or expense;
(ce) notify the selling holders Holder of Registrable Securities and the managing underwritersShares promptly and, if any, promptly, and (if requested by any such Person) Holder, confirm such advice in writing, writing (1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or has become effective and when any post-effective amendment, when the same has amendments and supplements thereto become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6iii) of the happening of any event during the period a Registration Statement is effective as a result of which makes such Registration Statement or the related Prospectus contains any untrue statement made in of a material fact or omits to state any material fact required to be stated therein or necessary to make the Registration Statementstatements therein not misleading, and (iv) at the Prospectus or any document incorporated therein by reference untrue or which requires the making written request of any changes in such Holder, promptly to furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the Registration Statementpurchaser of such securities, the such Prospectus shall not include an untrue statement of a material fact or any document incorporated omit to state a material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;
(df) upon written request, furnish to the Holder of Registrable Shares copies of any request by the Commission or any state securities authority for amendments or supplements to a Registration Statement and Prospectus or for additional information;
(g) make every commercially reasonable effort to avoid the issuance of, or if issued to obtain the withdrawal of of, any enjoining order suspending the use or effectiveness of the a Registration Statement or the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Shares for sale in any jurisdiction, at the earliest possible moment;
(eh) if requested by upon written request, furnish to the managing underwriter or underwriters or a holder Holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterShares, without charge, at least one signed conformed copy of the each Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all thereto (without documents incorporated therein by reference and all or exhibits (including those incorporated by referencethereto, unless requested);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6Section 3(e)(iii) abovehereof, use commercially reasonable efforts to prepare a supplement or posteffective post-effective amendment to the a Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable SecuritiesShares, the such Prospectus will not contain an any untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein therein, in the light of the circumstances under which they were made, not misleading;
(lj) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if If requested by the holders representative of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, if any, or any Holders of Registrable Shares being sold in formconnection with such offering, substance and scope (i) promptly incorporate in a prospectus supplement or post-effective amendment such information as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions representative of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering or such Holders indicate relates to them or otherwise reasonably request be included therein, and (ii) make all required filings of such prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be incorporated in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offeringssuch prospectus supplement or post-effective amendment; (4) if an underwriting agreement is entered intoprovided, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) however, that the Company shall deliver such documents and certificates as may not be requested by the holders of a majority of the Registrable Securities being sold and the managing underwritersrequired to take any action pursuant to this Section 3 that would, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by opinion of counsel for the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder, violate applicable law;
(ok) make available for inspection by a representative representatives of the holders of a majority Holder of the Registrable Securities, Shares and the representative of any underwriter underwriters participating in any disposition pursuant to such registration, a Registration Statement and any attorney special counsel or accountant retained by the sellers such Holders or underwriterunderwriters, all financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's respective officers, directors and employees of the Company to supply all information reasonably requested by any such representativerepresentatives, underwriterthe representative of the underwriters, attorney the special counsel or accountant accountants in connection with a Registration Statement; provided, however, that such registration; provided that any records, documents or information that the Company determines, in good faith, to be confidential and notifies such representatives, representative of the underwriters, special counsel or documents that accountants are designated confidential shall not be disclosed by the Company in writing as confidential shall be kept confidential by such Persons representatives, representative of the underwriters, special counsel or accountants unless (i) the disclosure of such records, documents or information is necessary to avoid or correct a misstatement or omission in a Registration Statement, (ii) the release of such records, documents or information is required by ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or administrative order(iii) such records, documents or information have been generally made available to the public;
(pl) otherwise use its best commercially reasonable efforts to comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holderssecurityholders, as soon as reasonably practicable, earnings statements satisfying covering at least 12 months that satisfy the provisions of Section 11(a1l(a) of the Securities Act and Rule 158 (or any similar rule promulgated under the Securities Act, no ) thereunder;
(m) provide and cause to be maintained a transfer agent for all Registrable Shares covered by any Registration Statement from and after a date not later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the such Registration Statement, which statements shall cover said 12-month periods; and
(qn) promptly prior to in connection with any sale or transfer of Registrable Shares that will result in such securities no longer being Registrable Shares, cooperate with the filing of any document which is to be incorporated by reference into Holders and the Registration Statement or the Prospectus (after initial filing representative of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make to facilitate the Company's representatives available for discussion timely preparation and delivery of certificates representing the Registrable Shares to be sold, which certificates shall not bear any restrictive legends, and to cause the issuance of certificates representing such document and make such changes Registrable Shares in such document denominations and registered in such names as the representative of the underwriters, if any, or Holders may request at least two Business Days prior to any sale of the filing thereof as counsel for such selling holders or underwriters may reasonably requestRegistrable Shares. The In addition, the Company may require each seller the Holder of Registrable Securities as to which any registration is being effected Shares to furnish to the Company such information regarding the proposed distribution by such Holder of such securities Registrable Shares as the Company may from time to time reasonably request in writingwriting or as shall be required to effect the registration of their Registrable Shares. Each holder of Registrable Securities The Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k3(e)(iii) hereof, such holder Holder will forthwith immediately discontinue disposition of Registrable Securities Shares pursuant to a Registration Statement until such holderHolder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if . If so directed by the Company, such holder Holder will deliver to the Company (at the expense of the Company's expense) all copiescopies in its possession, other than permanent file copies then in such holderHolder's possession, of the Prospectus covering such Registrable Securities Shares current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofShelf Registration Statement, the Company will use its reasonable best efforts to effect such registration to permit the sale of such Registrable the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution or disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) on or prior to the date 60 days after the Closing Date, prepare and file with the SEC, as soon as practicable, Commission a Shelf Registration Statement or Registration Statements relating to the registration on any appropriate form under the Securities Act, as selected by the Company, which form shall be available for the sale of the Registrable Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof and shall include or incorporate all required financial statements required by the SEC to be filed therewithstatements, reports, schedules, exhibits and other documents; cooperate and assist in any filings required to be made with the NASD, NASD and use its reasonable best efforts to cause such Shelf Registration Statement to become effectiveeffective and approved on or prior to the Target Effectiveness Date by such governmental agencies or authorities as may be necessary to enable the selling Holders to consummate the disposition of such Transfer Restricted Securities; provided that before filing a Shelf Registration Statement or Prospectus any Prospectus, or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of the Shelf Registration Statement, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement Holders and the underwriters, if any, copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review of such holders and underwritersHolders, and the Company will shall not file any Shelf Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority Holders of the Registrable Transfer Restricted Securities covered by such Shelf Registration Statement or the underwriters, if any, shall reasonably objectobject on the grounds that such Shelf Registration Statement, Prospectus, amendment or supplement does not comply in all material respects with the requirements of the Act or the rules and regulations thereunder in writing within four business days after the receipt thereof;
(b) prepare and file with the SEC Commission such amendments and post-post- effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldset forth in Section 3(a) hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rule 424 under the Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all 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; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify advise the selling holders of Registrable Securities and the managing underwritersHolders promptly and, if any, promptly, and (if requested by any such Person) Persons, to confirm such advice in writing, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Shelf Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, (2ii) of any request by the SEC Commission for amendments to the Shelf Registration Statement or amendments or supplements to the Registration Statement or the Prospectus or for additional informationinformation relating thereto, (3iii) 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 proceedings proceeding for that purposeany of the preceding purposes, (4iv) if at any time the representations and warranties of the Company contemplated by paragraph (ol)(i) below cease to be true and correct, and (5v) of the receipt by the Company existence 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 fact and (6) of the happening of any event which that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus Prospectus, any amendment or supplement thereto, or any document incorporated therein by reference untrue therein untrue, or which that requires the making of any additions to or changes in the Shelf Registration StatementStatement or the Prospectus, the Prospectus any amendment or supplement thereto, or any document incorporated therein by reference therein in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain misleading in the withdrawal light of the circumstances then existing. If at any time the Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement 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 momenttime;
(d) promptly prior to the filing of any document that is to be incorporated by reference into the Shelf Registration Statement or the Prospectus (after the initial filing of the Shelf Registration Statement), provide copies of such document to the selling Holders and underwriters, if any, make the Company's representatives available at reasonable times for discussion of such document and include such information in such document prior to the filing thereof as such selling Holders or underwriters may reasonably and timely request;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities Holder and each managing underwriter, if any, without charge, at least one signed copy of the Shelf Registration Statement Statement, as first filed with the Commission, and any post-effective of each amendment thereto, including financial statements and schedules, all documents incorporated therein by reference therein and all exhibits (including those exhibits incorporated therein by reference);
(gf) deliver to each selling holder of Registrable Securities Holder and the underwritersunderwriter, if any, without charge, as many copies of the Prospectus (including each preliminary prospectusProspectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or and any amendment or supplement thereto by each of the selling holders of Registrable Securities Holders and the underwriters, if any, in connection with the public offering and sale of the Registrable Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto;
(hg) prior to any public offering of Registrable Transfer Restricted Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the Holders and underwriters, if any, and their respective counsel in connection with the registration or and qualification of such Registrable the Transfer Restricted Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions as any seller or underwriter the selling Holders and underwriters, if any, may reasonably requests in writing request and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Transfer Restricted Securities covered by the Shelf Registration Statement; provided provided, however, that the Company will not shall be required neither to register or qualify generally as a foreign corporation where it is not now so qualified nor to do business take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Shelf Registration Statement, in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then now so subject;
(ih) in connection with any sale of Transfer Restricted Securities that will result in such securities no longer being Transfer Restricted Securities, cooperate with the selling holders of Registrable Securities and the managing underwriters, if any, Holders to facilitate the timely preparation and delivery of certificates representing Registrable Transfer Restricted Securities to be sold and not bearing any restrictive legends; and enable such Registrable Transfer Restricted Securities to be in such denominations and registered in such names as the managing underwriters Holders may request at least two business days prior to any sale of Registrable Transfer Restricted Securities to the underwritersmade by such Holders;
(ji) use its best efforts to cause the Registrable Transfer Restricted Securities covered by the applicable Shelf 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 or the underwriters, if any, to consummate the disposition of such Registrable Transfer Restricted Securities, subject to the proviso contained in clause (g) above;
(kj) upon the occurrence of if any fact or event contemplated by clause (v) of paragraph (c)(6c) aboveabove shall exist or have occurred, as promptly as practicable thereafter, prepare a supplement or posteffective post-effective amendment to the Shelf Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(lk) cause provide CUSIP numbers for all Registrable Transfer Restricted Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Shelf Registration Statement, provide a CUSIP number for all Registrable Securities Statement and provide the applicable trustee(s) or Trustee under the Indenture and the transfer agent(s) agent for the 9 1/4% Preferred Stock and Common Stock with printed certificates for the Registrable Transfer Restricted Securities which are in a form eligible for deposit with the Depositary Trust Company;
(nl) enter into such agreements (including an underwriting agreement) and take all such other actions consistent with its obligations hereunder in connection therewith and as may be reasonably required in order to expedite or facilitate the disposition of such Registrable the Transfer Restricted Securities pursuant to the Shelf Registration Agreement, and in such connection, whether or not an underwriting agreement is entered into and whether or not connection the registration is an underwritten registration Company shall (1i) make such representations and warranties to the holders of such Registrable Securities Holders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2ii) 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 managing Holders of the Transfer Restricted Securities being sold and underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder Holder requesting the same and the underwriters, if any, covering the such matters as are customarily covered in company counsel opinions requested to underwriters in primary underwritten offerings and such other matters as may be reasonably requested by such holders and underwritersofferings; (3iii) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders Holders of Registrable Transfer Restricted Securities and the underwriters, if any, requesting the same, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by to underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5iv) the Company shall deliver such documents and certificates as may be reasonably requested by the holders of a majority Holders of the Registrable Transfer Restricted Securities being sold and the managing underwriters, if any, to evidence compliance with clause (ki) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and Company pursuant to the extent required thereunderthis clause (1);
(om) subject to appropriate confidentiality arrangements being entered into, make available at reasonable times for inspection by a representative the Holders of the holders of a majority of the Registrable Securities, any underwriter Transfer Restricted Securities participating in any disposition pursuant to such registrationShelf Registration Statement, any underwriters and any attorney or accountant retained by the sellers such selling Holders or underwriterunderwriters, all financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representativeHolder, underwriter, attorney or accountant at reasonable times in connection with such registration; provided that any records, information or documents that are designated by Shelf Registration Statement subsequent to the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderfiling thereof and prior to its effectiveness;
(pn) otherwise use its best efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holders, as soon as reasonably practicable, a consolidated earnings statements satisfying statement (which need not be audited) for the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12twelve-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offeringperiod, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Shelf Registration Statement;
(o) cause the Indenture to be qualified under the TIA, and, in connection therewith, cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for such Indenture to be so qualified in accordance with the terms of the TIA; and execute and use its best efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the Commission to enable such Indenture to be so qualified in a timely manner;
(p) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement at the earliest possible moment; use its reasonable best efforts (i) to prevent the entry of any stop order affecting the Registration Statement and (ii) to remove any such stop order if entered;
(q) cause all Transfer Restricted Securities which statements shall cover said 12-month periodsare Common Stock covered by the Shelf Registration Statement to be listed on each securities exchange or quotation system on which the Company's Common Stock is then listed no later than the date the Shelf Registration Statement is declared effective;
(r) cooperate and assist in any filings required to be made with the NASD; and
(qs) promptly prior use its best efforts to cause the filing of any document which is Transfer Restricted Securities to be incorporated eligible for inclusion in the National Association of Securities Dealers, Inc. Private Offerings, Resales and Trading through Automated Linkages ("PORTAL") trading system. ------ The Company agrees that it will not include in the registration contemplated by reference into the Shelf Registration Statement or any securities other than the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestTransfer Restricted Securities. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish represents and warrants to the Company such information regarding Initial Purchasers that they will not be required to include under the distribution of such Shelf Registration Statement the securities as required to be registered by the Company may from time pursuant to time reasonably request in writing. Each holder the Registration Rights Agreement, dated as of Registrable August 23, 1995, by and among the Company, American National Bank and Trust Company of Chicago as Settlement Trustee under the Settlement Fund Agreement dated as of January 5, 1993, as amended, by and among the Company and American National Bank and Trust Company of Chicago, the Pension Benefit Guaranty Corporation and Pichin Corp. The Initial Purchasers on behalf of themselves and each subsequent Holder of Transfer Restricted Securities agrees agree by acquisition of such Registrable Transfer Restricted Securities that, upon receipt of any notice from the Company of the existence of any fact or the happening of any event of the kind described in clause (v) of Section 6(k5(c) hereof, such holder Holder will forthwith discontinue disposition of Registrable Transfer Restricted Securities pursuant to the Shelf Registration Statement until such holderHolder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k5(j) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be ------ resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if . If so directed by the Company, such holder each Holder will, or will request the managing underwriter or underwriters, if any, to deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holderHolder's possession, of the Prospectus covering such Registrable Transfer Restricted Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Trans World Airlines Inc /New/)
Registration Procedures. In connection with Upon the Company's receipt of a request for registration obligations of any Registrable Securities pursuant to Section 2 or Section 3 hereofof this Agreement, the Company will use its reasonable best efforts to effect such the registration to permit of the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare 9.1.1 Prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any an appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, Act and use its reasonable best efforts to cause such Registration Statement to become effectiveeffective at the earliest practicable date; provided that before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, the Company will promptly furnish to the holders of the Registrable Securities covered by such Registration Statement to be registered pursuant to this Agreement (the “Registered Holders”) and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders the Registered Holders and the underwriters, and the Company will not file any Registration Statement or amendment thereto thereto, or any Prospectus prospectus or any supplement thereto (other than documents incorporated by reference) to which the holders of a majority of the Registrable Securities covered by such Registration Statement Registered Holders or the underwriters, if any, shall reasonably object;object in light of the requirements of the Securities Act and any other applicable laws and regulations.
(b) prepare 9.1.2 Prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus related prospectus to be filed pursuant to Rule 424(b) (or any successor provision) under the Securities Act; cause such prospectus to be supplemented by any required Prospectus supplementprospectus supplement and, and as so supplemented supplemented, to be filed pursuant to Rule 424 424(b) (or any successor provision) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof disposition set forth in such Registration Statement or prospectus or supplement to such prospectus.
9.1.3 Notify the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities Registered Holders and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1i) when the Prospectus a prospectus or any Prospectus prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective, (2ii) of any request by the SEC for amendments or supplements to the a Registration Statement or the Prospectus related prospectus or for additional information, (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement or the initiation of any proceedings proceeding for that purpose, (4iv) if at any time the representations and warranties of the Company contemplated by paragraph (o) below Section 9.1.10 cease to be true and correct, (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6vi) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the a Registration Statement, the Prospectus Statement or related prospectus so that such documents will not contain any document incorporated untrue statement of a material fact or omit to state any material fact required to be stated therein by reference in order or necessary to make the statements therein not misleading;misleading and (vii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate or that there exist circumstances not yet disclosed to the public which make further sales under such Registration Statement inadvisable pending such disclosures and post-effective amendment.
(d) make every 9.1.4 Make reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement, or the Registration Statement at lifting of any suspension of the earliest possible moment;qualification of any of the Registrable Securities for sale in any jurisdiction, as soon as practicable.
(e) if 9.1.5 If requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold the Registered Holders in connection with an underwritten offering, promptly immediately incorporate in a Prospectus prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold Registered Holders agree should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to regarding the number of shares of Registrable Securities being sold to such underwriters, underwriters and 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 prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;; and supplement or make amendments to any Registration Statement if requested by the Registered Holders or any underwriter of such Registrable Securities.
(f) 9.1.6 If requested, furnish to each selling holder of Registrable Securities the Registered Holders and each managing underwriter, if any, without charge, at least one signed copy of the Registration Statement and Statement, any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);.
(g) deliver 9.1.7 Deliver without charge to each selling holder of Registrable Securities the Registered Holders and the underwriters, if any, without charge, as many copies of the Prospectus prospectus or prospectuses (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; and the Company consents to the use of the Prospectus such prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities such Registered Holders and the underwriters, if any, in connection with the offering offer and sale of the Registrable Securities covered by the Prospectus such prospectus or any amendment or supplement thereto;.
(h) prior 9.1.8 Prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable SecuritiesRegistered Holders, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky Blue Sky laws of such jurisdictions as any seller the Registered Holders or an underwriter reasonably requests in writing writing; keep each such registration or qualification effective during the period the Registration Statement is required to be kept effective and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the applicable Registration Statement; provided provided, however, that the Company will not be required in connection therewith or as a condition thereto 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 itself to general service of process in any such jurisdiction where it is not then so subject;.
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon 9.1.9 Upon the occurrence of any event contemplated by paragraph (c)(6Section 9.1.3(ii)-(vii) above, prepare prepare, to the extent required, a supplement or posteffective post-effective amendment to the applicable Registration Statement or the related Prospectus prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers purchaser of the Registrable SecuritiesSecurities being sold thereunder, the Prospectus such prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading;.
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for 9.1.10 If the Registrable Securities which to be covered by such registration are to be offered in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration offering: (1i) make such representations and warranties to the holders of such Registrable Securities Registered Holders as to the Registration Statement, prospectus and the underwritersdocuments incorporated by reference, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in confirm the Purchase Agreementsame if and when requested; (2ii) obtain opinions of counsel to the Company and updates thereof with respect to the Registration Statement and the prospectus in the form, scope and substance which are customarily delivered in underwritten offerings; (which counsel and opinions (iii) enter into an underwriting agreement in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if any, covering the matters customarily covered in opinions requested substance as is customary in underwritten offerings and such other matters as may be reasonably requested by such holders and underwritersofferings; (3iv) obtain "cold comfort" comfort letters and updates thereof from the Company's ’s independent certified public accountants addressed to the selling holders of Registrable Securities Registered Holders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" comfort letters by underwriters accountants in connection with primary underwritten offerings; (4v) if an cause the underwriting agreement is entered into, the same shall set forth in full the to include indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Sectioncustomarily included in underwriting agreements in underwritten offerings; and (5vi) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold Registered Holders and the managing underwriters, if any, to evidence compliance with clause (ki) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;.
(o) make 9.1.11 Make available for inspection by a representative of the holders of a majority of the Registrable SecuritiesRegistered Holders, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers Registered Holders or such underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's ’s officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided provided, that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure disclosures of such records, information or documents is required by court or administrative order;.
(p) otherwise 9.1.12 Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings holders earning statements satisfying the provisions of Section 11(a) of the Securities ActAct and Rule 158 thereunder, no later than 45 90 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or offering and (2ii) if not sold to underwriters in such an offering, beginning with the first month day of the Company's ’s first fiscal quarter commencing next succeeding each sale of Registrable Securities after the effective date of the a Registration Statement, which statements shall cover said 12-month periods; and, and which requirement shall be satisfied if the Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act.
(q) promptly prior 9.1.13 Use its reasonable best efforts to the filing of any document which is to be incorporated list all Registrable Securities covered by reference into the Registration Statement on the NYSE MKT and any other securities exchange or trading market on which any of the equity securities of the Company of the same class as the Registrable Securities are then listed.
9.1.14 At all times during the term of this Agreement, maintain the effectiveness of the registration of the Earthstone Common Stock under the Exchange Act and use its reasonable best efforts to prepare and file in a timely manner all documents and reports required by the Exchange Act.
9.1.15 If the Company, in the exercise of its reasonable judgment, objects to any change requested by the Registered Holders or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available to any Registration Statement or prospectus or any amendments or supplements thereto (including documents incorporated or to be incorporated therein by reference) as provided for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities thatthis Section 9, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give not be obligated to make any such noticechange and such Registered Holders may withdraw their Registrable Securities from such registration, in which event (i) the time periods regarding the maintenance of Company shall pay all registration expenses (including its counsel fees and expenses) incurred in connection with such Registration Statement shall be extended by or amendment thereto or prospectus or supplement thereto, and (ii) in the number case of days during the period from and including the date of the giving of such notice a registration being effected pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by 2, such Registration Statement registration shall have received the copies not count as one of the supplemented or amended prospectus contemplated by registrations the Company is obligated to effect pursuant to Section 6(k) hereof or the Advice2.
Appears in 1 contract
Samples: Registration Rights Agreement (Earthstone Energy Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to under Section 3 hereof3, the Company will shall use its best all reasonable efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will shall as expeditiously as possiblepracticable:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any an appropriate form under the Securities Actregistration form, which Registration Statement shall comply as to form shall be available for in all material respects with the sale requirements of the Registrable Securities in accordance with the intended method applicable form and include or methods of distribution thereof and shall include incorporate by reference all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDtherewith or incorporated by reference therein, and in either case use best all reasonable efforts to cause such Registration Statement to become effectiveeffective and remain effective in accordance with Section 3.1(b); provided provided, however, that before filing a Registration Statement or Prospectus or any amendments amendment or supplements supplement thereto, including information incorporated by reference after the initial filing of the Registration Statement, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters, if any, copies of all such documents proposed to be filedfiled (including, upon request, any and all exhibits thereto), which documents will shall be subject to the reasonable and prompt review of such holders and underwriters, and the Company will shall not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority at least 50% of the Registrable Securities covered by such Registration Statement Statement, or the managing underwriter or underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the such Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will shall terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof Selling Holders set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders Selling Holders of Registrable Securities and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice in writingwriting promptly, (1) when the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement has been filed, and, with respect to the such Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, (2) of any comments of the SEC or any state securities authority with regard to the Registration Statement and of any request by the SEC or any state securities authority for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission SEC or any state securities authority of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 purpose, (5) in the case of any shelf Registration Statement, if between the effective date of a Registration Statement and the closing of any sale of Registrable Securities covered thereby, the representations and warranties of the Company contained in any underwriting agreement, securities sale agreement or other similar agreement, relating to the offering cease to be true and correct in all material respects and (6) of the happening of any event which or the discovery of any facts that makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue in any material respect or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momenttime;
(e) if requested by the managing underwriter or underwriters or a holder Holder of Registrable Securities being sold offered for sale in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters and the holders or such holder of a majority of the Registrable Securities being sold agree offered for sale consider should be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered for sale, 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 practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and Statement, any amendment (including any post-effective amendment amendment) thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the state securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will shall 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 in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing without any restrictive legends; and enable such Registrable Securities to be in such denominations and registered in such names as the managing underwriter or underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by clause (6) of paragraph (c)(6c) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will 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;
(lk) use all reasonable efforts to cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange or on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwritersNasdaq National Market, if any, on which the Common Stock is then listed;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nl) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities covered by a Registration Statement and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreementofferings; (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 managing underwriter or underwriters, if any, and the holders of a majority at least 50% 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; and (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(om) make available for inspection by a representative of the holders of at least a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, Registration Statement and any attorney or accountant retained by the sellers any selling holder or holders of Registrable Securities or any underwriter, all financial and other records, records and all pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to be available for discussions with and to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided provided, that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons persons unless disclosure of such records, information or documents is required by court or administrative orderorder or becomes publicly available;
(pn) otherwise use its all reasonable best efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, as provided in Rule 158 or otherwise, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and;
(qo) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriter or underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request; and
(p) otherwise reasonably cooperate with the Selling Holders to carry out the intent of this Agreement. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing; provided, however, that such information shall be used by the Company only to the extent necessary for and in connection with, such registration. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k5(c)(6) hereof, such holder will shall forthwith discontinue disposition of such Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof5(j), or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.be
Appears in 1 contract
Samples: Common Stock Registration Rights Agreement (Education Management Corporation)
Registration Procedures. In connection with If and whenever the Company's Company is required by the provisions of Section 2, 3 or 4 hereof to effect the registration obligations pursuant to Section 3 hereofof shares of Registrable Stock or Founder Registrable Stock under the Securities Act, the Company will use will, at its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofexpense, and pursuant thereto the Company will as expeditiously as possible:
(a) In accordance with the Securities Act and the rules and regulations of the Commission, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of with respect to the Registrable Securities in accordance with the intended method Stock or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, Founder Registrable Stock and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of and remain effective until the Registrable Securities Stock or Founder Registrable Stock covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwritershas been sold, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments to such Registration Statement and post-effective amendments supplements to the Registration Statement prospectus contained therein as may be necessary to keep the such Registration Statement effective for and such Registration Statement and prospectus accurate and complete until the applicable period, Registrable Stock or such shorter period which will terminate when all Founder Registrable Securities Stock covered by such Registration Statement have has been sold; cause ;
(b) If the Prospectus offering is to be supplemented by any required Prospectus supplementunderwritten in whole or in part, enter into a written underwriting agreement in form and as so supplemented substance reasonably satisfactory to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions managing underwriter, if any, of the Securities Act with respect public offering and the Holders participating in such offering;
(c) Furnish to the disposition participating Holders and to the underwriters such reasonable number of all securities copies of the Registration Statement, preliminary prospectus, final prospectus and such other documents as such underwriters and participating Holders may reasonably request in order to facilitate the public offering of such securities;
(d) Use its best efforts to register or qualify the Registrable Stock and Founder Registrable Stock covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in under such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the state securities or blue sky laws of such jurisdictions (i) as any seller or underwriter shall be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable appropriate for the disposition in such jurisdictions distribution of the Registrable Securities Stock and Founder Registrable Stock covered by such Registration Statement or (ii) as such participating Holders and underwriters may reasonably request within twenty (20) days following the original filing of such Registration Statement; provided , except that the Company will shall not for any purpose be required to execute a general consent to service of process, to subject itself to taxation, or to qualify generally to do business as a foreign corporation in any jurisdiction where it is not then so qualified or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subjectqualified;
(ie) cooperate with Notify 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 Holders participating in such denominations registration, promptly after it shall receive notice thereof, of the date and registered in time when such names as the managing underwriters may request at least two business days prior Registration Statement and each post-effective amendment thereto has become effective or a supplement to any sale prospectus forming a part of Registrable Securities to the underwriterssuch Registration Statement has been filed;
(jf) use its best efforts Notify the Holders participating in such registration promptly of any request by the Commission or any state securities commission or agency for the amending or supplementing of such Registration Statement or prospectus or for additional information;
(g) Prepare and file with the Commission, promptly upon the request of any such participating Holders, any amendments or supplements to cause such Registration Statement or prospectus which, in the opinion of counsel representing the Company in such Registration (and which counsel is reasonably acceptable to such participating Holders), is required under the Securities Act or the rules and regulations thereunder in connection with the distribution of the Registrable Securities covered Stock and Founder Registrable Stock by such participating Holders;
(h) Prepare and promptly file with the applicable Commission, and promptly notify such participating Holders of the filing of, such amendments or supplements to such Registration Statement to be registered with or approved by such other governmental agencies or authorities prospectus as may be necessary to enable correct any statements or omissions if, at the seller or sellers thereof or the underwriters, if any, time when a prospectus relating to consummate the disposition of such Registrable Securities;
(k) upon Stock and Founder Registrable Stock is required to be delivered under the occurrence of Securities Act, any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to has occurred as the Registration Statement or the related Prospectus result of which any such prospectus or any document incorporated therein by reference or file any other required document so that, prospectus as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will 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;
(li) cause all Registrable In case any of such participating Holders or any underwriter for any such Holders is required to deliver a prospectus at a time when the prospectus then in circulation is not in compliance with the Securities covered by Act or the rules and regulations of the Commission, prepare promptly upon request such amendments or supplements to such Registration Statement and such prospectus as may be necessary in order for such prospectus to be listed on each securities exchange on which similar securities issued by comply with the Company are then listed if requested by requirements of the holders of a majority of Securities Act and such Registrable Securities or the managing underwriters, if anyrules and regulations;
(mj) not later than Advise such participating Holders, promptly after it shall receive notice or obtain knowledge of the issuance of any stop order by the Commission or any state securities commission or agency suspending the effectiveness of such Registration Statement 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;
(k) At the request of any such participating Holder (i) furnish to such Holder on the effective date of the Registration StatementStatement or, provide a CUSIP number if such registration includes an underwritten public offering, at the closing provided for all Registrable Securities and provide in the applicable trustee(s) or transfer agent(s) with printed certificates underwriting agreement, an opinion, dated such date, of the counsel representing the Company for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition purposes of such Registrable Securities and in such connectionregistration, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties addressed to the holders of such Registrable Securities and the underwriters, if any, in formand to the Holder or Holders making such request, substance covering such matters with respect to the registration statement, the prospectus and scope each amendment or supplement thereto, proceedings under state and Federal securities laws, other matters relating to the Company, the securities being registered and the offer and sale of such securities as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;subject of
(ol) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use Use its best efforts to comply with ensure the obtaining of all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice necessary approvals from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceNASD.
Appears in 1 contract
Samples: Registration Rights Agreement (Sitara Networks Inc)
Registration Procedures. In connection with If and whenever the Company's Company is required by the provisions of this Warrant to use to effect the registration obligations pursuant to Section 3 hereofof any of the Registrable Shares under the Securities Act, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with furnish to the SEC, Registered Holder such number of copies as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form Registered Holder shall be available for the sale reasonably request of the Registrable Securities in accordance with the intended method or methods of distribution thereof prospectus, including a preliminary prospectus and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, in conformity with the Company will furnish to the holders requirements of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectAct;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause register or qualify the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities Shares covered by the Registration Statement to be listed on each under the securities exchange on which similar securities issued by laws of such states as the Registered Holder shall reasonably request; provided, however, that the Company are then listed shall not be required in connection with this subsection 20(b) to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction;
(c) promptly notify the Registered Holder, if the Company has delivered preliminary or final prospectuses to the Registered Holder and after having done so, the prospectus is amended to comply with the requirements of the Securities Act and, if requested by the holders Company, the Registered Holder shall immediately cease making offers or sales of a majority Registrable Shares under the Registration Statement and return all prospectuses to the Company. The Company shall promptly provide the Registered Holder with revised prospectuses and, following receipt of such the revised prospectuses, the Registered Holder shall be free to resume making offers and sales of the Registrable Securities or the managing underwriters, if any;Shares; and
(md) not later than pay the effective date expenses incurred by it in complying with its obligations under this Warrant in connection with registration rights, including all registration and filing fees, exchange listing fees, expenses for the preparation of the Registration Statement, provide a CUSIP number for all Registrable Securities prospectus and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) any amendments and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities supplements thereto, printing and in such connectionphotocopy expenses, whether or not an underwriting agreement is entered into fees and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2) obtain opinions expenses of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause fees and expenses of accountants for the Company's officers, directors and employees to supply all information reasonably requested but excluding: (i) selling commissions or underwriting discounts incurred by any such representative, underwriter, attorney or accountant the Registered Holder in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure sales of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into Shares under the Registration Statement or and (ii) the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities fees and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt expenses of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") counsel retained by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceRegistered Holder.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations Registration to be effected pursuant to Section 3 hereofthe Resale Shelf Registration Statement, and whenever the Company will holders of Registrable Securities have requested that any Registrable Securities be Registered pursuant to this Agreement or have initiated a Takedown Offering, Pubco shall use its reasonable best efforts to effect such registration to permit the Registration and the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Pubco shall as expeditiously as reasonably possible:
(a) prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities ActStatement, which form shall and all amendments and supplements thereto and related prospectuses as may be available for the sale of the necessary to comply with applicable securities laws, with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its reasonable best efforts to cause such Registration Statement to become effective; effective (provided that at least two (2) Business Days before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will Pubco shall furnish to counsel selected by the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, Applicable Approving Party copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review and comment of such holders and underwriterscounsel, and no such document shall be filed with the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto Commission to which the holders of a majority of the Registrable Securities covered by such Registration Statement any Investor or the underwriters, if any, shall its counsel reasonably objectobjects);
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders each holder of Registrable Securities and the managing underwriters, if any, promptly, and of (if requested by any such PersonA) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the any Registration Statement or the initiation of any proceedings for that purpose, (4B) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) of the receipt by the Company Pubco or its counsel 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 purpose, and (6C) the effectiveness of each Registration Statement filed hereunder;
(c) prepare and file with the Commission such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement and the Prospectus used in connection therewith current, effective and available for the resale of all of the Registrable Securities required to be covered thereby for a period ending when all of the securities covered by such Registration Statement have been disposed of in accordance with the intended methods of distribution by the sellers thereof set forth in such Registration Statement (but not in any event before the expiration of any longer period required under the Securities Act or, if such Registration Statement relates to an underwritten Public Offering, such longer period as in the opinion of counsel for the underwriters a Prospectus is required by law to be delivered in connection with sale of Registrable Securities by an underwriter or dealer) 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 the sellers thereof set forth in such Registration Statement;
(d) furnish to each seller of Registrable Securities thereunder such number of copies of such Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus), each Free-Writing Prospectus and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(e) during any period in which a Prospectus is required to be delivered under the Securities Act, promptly file all documents required to be filed with the Commission, including pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Act;
(f) use its reasonable best efforts to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the lead underwriter or the Applicable Approving Party reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller (provided that Pubco shall not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 5(f), (ii) consent to general service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction);
(g) promptly notify in writing each seller of such Registrable Securities (i) after it receives notice thereof, of the date and time when such Registration Statement and each post-effective amendment thereto has become effective or a Prospectus or supplement to any Prospectus relating to a Registration Statement has been filed and when any registration or qualification has become effective under a state securities or blue sky law or any exemption thereunder has been obtained, (ii) of any request by the Commission for the amendment or supplementing of such Registration Statement or Prospectus or for additional information, and (iii) at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which makes any statement made in the Registration Statement, the Prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any document incorporated fact necessary to make the statements therein by reference untrue or which requires not misleading, and, at the making request of any changes in such seller, Pubco promptly shall prepare, file with the Registration StatementCommission and furnish to each such seller a reasonable number of copies of a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any document incorporated therein by reference in order fact necessary to make the statements therein not misleading;
(dh) make every reasonable effort cause all such Registrable Securities to obtain be listed on each securities exchange on which similar securities issued by Pubco are then listed and, if similar securities are not so listed, to be listed on a securities exchange and, without limiting the withdrawal of any order suspending the effectiveness generality of the Registration Statement foregoing, to arrange for at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment least two market makers to register as such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable SecuritiesSecurities with FINRA;
(i) if applicable, including, without limitation, information promptly effect a filing with FINRA pursuant to FINRA Rule 5110 (or successor thereto) with respect to the number public offering contemplated by resales of Registrable Securities being sold to such underwriterssecurities under the Resale Shelf Registration Statement (an “Issuer Filing”), pay the purchase price being paid therefor filing fee required by such underwriters Issuer Filing and with respect use its reasonable best efforts to any other pursue the Issuer Filing until FINRA issues a letter confirming that it does not object to the terms of the underwritten offering contemplated by the Resale Shelf Registration Statement.
(or best efforts underwrittenj) offering of the provide a transfer agent and registrar for all such Registrable Securities to be sold in such offering; and make all required filings not later than the effective date 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 amendmentRegistration Statement;
(fk) furnish to each selling holder of Registrable Securities enter into and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits perform such customary agreements (including those incorporated by reference);
(gunderwriting agreements in customary form) deliver to each selling holder of Registrable Securities and take all such other actions as the Applicable Approving Party or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without chargelimitation, if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $25,000,000, participating in such number of “road shows”, investor presentations and marketing events as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as underwriters managing such Persons offering may reasonably request);
(l) make available for inspection by a representative of the Applicable Approving Party, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such representative or underwriter, all financial and other records, pertinent corporate and business documents and properties of Pubco as shall be reasonably requested to enable them to exercise their due diligence responsibility, and cause Pubco’s officers, managers, directors, employees, agents, representatives and independent accountants to supply all information reasonably requested by any such representative, underwriter, attorney, accountant or agent in connection with such Registration Statement; provided, however, that any such representative or underwriter enters into a confidentiality agreement, in form and substance reasonably satisfactory to Pubco, prior to the Company consents release or disclosure of any such information;
(m) take all reasonable actions to ensure that any Free-Writing Prospectus utilized in connection with any Demand Registration (including any Shelf Registration) or Piggyback Registration hereunder complies in all material respects with the Securities Act, is filed in accordance with the Securities Act to the extent required thereby, is retained in accordance with the Securities Act to the extent required thereby and, when taken together with the related Prospectus, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(n) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission;
(o) permit any holder of Registrable Securities who, in its good faith judgment (based on the advice of counsel), could reasonably be expected to be deemed to be an underwriter or a controlling Person of Pubco to participate in the preparation of such registration or comparable statement and to require the insertion therein of material furnished to Pubco in writing, which in the reasonable judgment of such holder and its counsel should be included;
(p) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of the any related Prospectus or suspending the qualification of any amendment or supplement thereto by each Common Stock included in such Registration Statement for sale in any jurisdiction, use its reasonable best efforts promptly to obtain the withdrawal of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the such order;
(q) use its reasonable best efforts to cause such Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kr) upon cooperate with the occurrence holders of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or and the managing underwritersunderwriter 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 Registration Statement and enable such securities to be in such denominations and registered in such names as the managing underwriter, or agent, if any, or such holders may request;
(ms) not later than the effective date cooperate with each holder of Registrable Securities covered by the Registration Statement, provide a CUSIP number for all Registrable Securities Statement and provide the applicable trustee(s) each underwriter or transfer agent(s) with printed certificates for the Registrable Securities which are agent participating in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(t) if such connection, whether or not an underwriting agreement is entered into and whether or not the registration is Registration includes an underwritten registration (1) make such representations public offering, use its reasonable best efforts to obtain a cold comfort letter from Pubco’s independent public accountants and warranties addressed 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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering such matters of the type customarily covered in "by cold comfort" comfort letters by as the underwriters in connection with primary such Registration reasonably request;
(u) provide a legal opinion of Pubco’s outside counsel, dated the effective date of such Registration Statement (and, if such Registration includes an underwritten offerings; (4) if an Public Offering, dated the date of the closing under the underwriting agreement is entered intoagreement), the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties the Registration Statement, each amendment and supplement thereto, the Prospectus included therein (including the preliminary Prospectus) and such other documents relating thereto in customary form and covering such matters of the type customarily covered by legal opinions of such nature, which opinion shall be addressed to the underwriters;
(v) if Pubco files an Automatic Shelf Registration Statement covering any Registrable Securities, use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405)) during the period during which such Automatic Shelf Registration Statement is required to remain effective;
(w) if Pubco does not pay the filing fee covering the Registrable Securities at the time an Automatic Shelf Registration Statement is filed, pay such fee at such time or times as the Registrable Securities are to be indemnified sold;
(x) subject to the terms of Section 2(c) and Section 2(d), if an Automatic Shelf Registration Statement has been outstanding for at least three (3) years, at the end of the third year, refile a new Automatic Shelf Registration Statement covering the Registrable Securities, and, if at any time when Pubco is required to re-evaluate its WKSI status Pubco determines that it is not a WKSI, use its reasonable best efforts to refile the Registration Statement on Form S-3 and keep such Registration Statement effective (including by filing a new Resale Shelf Registration or Shelf Registration, if necessary) during the period throughout which such Registration Statement is required to be kept effective;
(y) cooperate with each Investor that holds Registrable Securities being offered and the managing underwriter or underwriters with respect to an applicable Registration Statement, if any, to facilitate the timely (i) preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities to be offered pursuant to said Section; such Registration Statement, and enable such certificates to be registered in such names and in such denominations or amounts, as the case may be, or (5ii) the Company shall deliver such documents and certificates as may be requested by the holders of a majority crediting of the Registrable Securities being sold and to be offered pursuant to a Registration Statement to the applicable account (or accounts) with The Depository Trust Company (“DTC”) through its Deposit/Withdrawal At Custodian (“DWAC”) system, in any such case as such Investor or the managing underwriter or underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information may reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periodsrequest; and
(qz) promptly prior for so long as this Agreement remains effective, (a) cause the Common Stock to be eligible for clearing through DTC, through its DWAC system; (b) be eligible and participating in the Direct Registration System (DRS) of DTC with respect to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus Common Stock; (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(kc) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company ensure that the use of transfer agent for the Prospectus may be resumedCommon Stock is a participant in, and has received copies that the Common Stock is eligible for transfer pursuant to, DTC’s Fast Automated Securities Transfer Program (or successor thereto); and (d) use its reasonable best efforts to cause the Common Stock to not at any time be subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, including the clearing of any additional or supplemental filings which are incorporated by reference in the Prospectusshares of Common Stock through DTC, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give Common Stock becomes subject to any DTC “chill,” “freeze” or similar restriction with respect to any DTC services, use its reasonable best efforts to cause any such notice, “chill,” “freeze” or similar restriction to be removed at the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Adviceearliest possible time.
Appears in 1 contract
Samples: Exclusive Real Estate Advisory Agreement (CareMax, Inc.)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofof the Company under this Agreement, the Company will use its best efforts to effect such registration to permit shall:
(a) Prepare and file with the SEC a Shelf Registration Statement or Shelf Registration Statements on Form S-3 or, with the agreement of the Holders, any other appropriate form under the Securities Act available for the sale of such the Registrable Securities by the Holders thereof in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause each such Shelf Registration Statement to become effectiveeffective under the Securities Act and remain effective under the Securities Act as provided herein; provided that provided, that, before filing a any Shelf Registration Statement or Prospectus or any amendments or supplements theretothereto with the SEC, the Company will shall furnish to the holders of Holders and counsel for the Registrable Securities covered by such Registration Statement and the underwriters, if any, Holders copies of all such documents proposed to be filed, which documents will be subject filed and reflect in each such document when so filed with the SEC such comments as the Holders or such counsel reasonably shall propose within three (3) Business Days of the delivery of such copies to the reasonable review of Holders and such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;counsel.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to the each Shelf Registration Statement as may be necessary to keep the such Shelf Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Subsequent Shelf Registration Statement have been soldcontinuously effective until the expiration of the Effectiveness Period; cause the related Prospectus to be supplemented by any required Prospectus supplementsupplement and, and as so supplemented supplemented, to be filed with the SEC pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act applicable to it with respect to the disposition of all securities covered by such each Shelf Registration Statement during the applicable period Effectiveness Period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Shelf Registration Statement as so amended or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;supplemented.
(c) notify As promptly as practicable, give notice to the selling holders of Registrable Securities Holders and counsel for the managing underwriters, if any, promptly, and Holders:
(if requested by any such Person) confirm such advice in writing, (1i) when the any Prospectus, Prospectus or any Prospectus supplement supplement, Shelf Registration Statement or post-effective amendment to a Shelf Registration Statement has been filed, filed with the SEC and, with respect to the a Shelf Registration Statement or any post-effective amendment, when the same has become effective, effective under the Securities Act,
(2ii) of any request request, following the effectiveness of a Shelf Registration Statement under the Securities Act, by the SEC or any other governmental authority for amendments or supplements to the such Shelf Registration Statement or the related Prospectus or for additional information, ,
(3iii) of the issuance by the Commission SEC or any other governmental authority of any stop order suspending the effectiveness of the any Shelf Registration Statement or the initiation or threatening of any proceedings for that purpose, ,
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iv) of the receipt by the Company or its legal counsel of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose,
(6v) after the effective date of any Shelf Registration Statement filed with the SEC pursuant to this Agreement, of the occurrence of (but not the nature of or details concerning) a Material Event, and
(vi) of the happening determination by the Company that a post-effective amendment to a Shelf Registration Statement or a Subsequent Shelf Registration Statement will be filed with the SEC, which notice may, at the discretion of any the Company (or as required pursuant to Section 3(i)), state that it constitutes a Suspension Notice, in which event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making provisions of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;Section 3(i) shall apply.
(d) make every reasonable effort Use its best efforts to (i) prevent the issuance of, and, if issued, to obtain the withdrawal of of, any order suspending the effectiveness of the a Shelf Registration Statement and (ii) obtain the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction in which they have been qualified for sale, in either case at the earliest possible moment;, and provide prompt notice to each Holder, and counsel for the Holders, of the withdrawal or lifting of any such order or suspension.
(e) if If requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringHolders, as promptly as practicable incorporate in a Prospectus supplement or a post-effective amendment to a Shelf Registration Statement such information as the managing underwriters and Holder or counsel for the holders of a majority of the Registrable Securities being sold agree should Holders shall determine to be required to be included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number 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; applicable law and make all any 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;; provided, however, that the Company shall not be required to take any actions under this Section 3(e) that, in the written opinion of counsel for the Company, are not in compliance with applicable law.
(f) As promptly as practicable, furnish to each selling holder of Registrable Securities Holder and each managing underwritercounsel for the Holders, without charge, at least one signed (1) conformed copy of the each Shelf Registration Statement and any post-effective each amendment thereto, including financial statements and but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (including those incorporated unless requested in writing to the Company by referencesuch Holder or such counsel);.
(g) During the Effectiveness Period, deliver to each selling holder Holder and, counsel for the Holders, in connection with any sale of Registrable Securities and the underwriters, if anypursuant to a Shelf Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Persons Holder may reasonably request; and the Company hereby consents (except during such periods that a Suspension Notice is outstanding and has not been revoked) to the use of the such Prospectus or any and each amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if anyHolder, in connection with the any offering and sale of the Registrable Securities covered by the such Prospectus or any amendment or supplement thereto;thereto in the manner set forth therein.
(h) prior Prior to any public offering of the Registrable SecuritiesSecurities pursuant to a Shelf Registration Statement, use its best efforts to register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel Holders 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 Blue Sky laws of such jurisdictions within the United States as any seller or underwriter Holder reasonably requests in writing writing; use its best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Holder’s offer and sale of Registrable Securities 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 the such Registrable Securities covered by in the manner set forth in the relevant Shelf Registration StatementStatement and the related Prospectus; provided provided, however, that the Company 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 in any such jurisdiction where it is not then so subject;qualified.
(i) cooperate Upon: (A) the occurrence or existence of any pending corporate development (a “Material Event”) that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of any Shelf Registration Statement and the related Prospectus; (B) the issuance by the SEC of a stop order suspending the effectiveness of any Shelf Registration Statement or the initiation of proceedings with respect to any Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act; or (C) the occurrence of any event or the existence of any fact as a result of which any 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 necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
(i) in the case of clause (A) or (C) above, as promptly as practicable, prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Shelf Registration Statement or a supplement to such 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 so that such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order 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, use its best efforts to cause it to become effective under the Securities Act as promptly as practicable, and
(ii) give notice to the Holders and counsel for the Holders that the availability of the Shelf Registration Statement is suspended (a “Suspension Notice”). The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable and, in any event, so that the period during which the availability of the Shelf Registration Statement and any Prospectus is suspended pursuant to this Section 3(i) does not exceed thirty (30) days in the aggregate in any three (3) month period or sixty (60) days in the aggregate in any twelve (12) month period.
(j) Make available for inspection during normal business hours by representatives for the Holders and any underwriters participating in any disposition pursuant to any Shelf Registration Statement and any broker-dealers, attorneys and accountants retained by such Holders or any such underwriters, all relevant financial and other records and pertinent corporate documents and properties of the Company and its subsidiaries, and cause the appropriate officers, directors and employees of the Company and its subsidiaries to make available for inspection during normal business hours all relevant information reasonably requested by such representatives for the Holders, or any such underwriters, broker-dealers, attorneys or accountants in connection with such disposition, in each case as is customary for similar “due diligence” examinations; provided, however, that such persons shall, at the Company’s request, first agree in writing with the selling holders Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of Registrable Securities delivery of such information shall be kept confidential by such persons and shall be used solely for the purposes of exercising rights under this Agreement, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of governmental or regulatory authorities, (ii) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of any Shelf Registration Statement or the use of any Prospectus referred to in this Agreement) or necessary to defend or prosecute a claim brought against or by any such persons (e.g., to establish a “due diligence” defense), (iii) 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 (iv) 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 or is not otherwise under a duty of trust to the Company; provided further, that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Holders and the managing underwritersother parties entitled thereto by counsel for the Holders in connection with Shelf Registration Statements.
(k) Comply with all applicable rules and regulations of the SEC; and make generally available to its securityholders earnings 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), if anywhich statements shall cover a period of twelve (12) months commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of each Shelf Registration Statement (within the meaning of Rule 158(c) under the Securities Act), and which statements shall be so made generally available to the Company’s securityholders no later than seventy-five (75) days after the end of each fiscal year of the Company.
(l) Cooperate with each Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and pursuant to a Shelf Registration Statement, which certificates shall not bearing bear any restrictive legends; , and enable cause such Registrable Securities to be in such denominations and registered in such names as the managing underwriters such Holder may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;in writing.
(m) not later than Cooperate and assist in any filings required to be made with the effective date National Association of the Registration StatementSecurities Dealers, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;Inc.
(n) Use its best efforts (including without limitation, seeking to cure in the Company’s listing application any deficiencies listed by the exchange) to qualify for and list and include all Registrable Securities on the American Stock Exchange.
(o) Take all actions and enter into such customary agreements (including an underwriting agreement) and take all such other actions in connection therewith as are necessary, or reasonably requested by the Holders, in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (American Oil & Gas Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 5 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements relating to the applicable registration on any appropriate form under the Securities Act, which form forms shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by of the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDCompany, and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of the Registration Statement, the Company will furnish to one counsel selected by the holders of a majority of the shares of Registrable Securities covered by such Registration Statement registration statement, and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders counsel and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority of the Registrable Securities covered by such Registration Statement counsel or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectusprospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling the holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, ; provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k)7(l) hereof, if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (on) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if reasonably requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringUnderwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority in number of the Registrable Securities being sold agree should be included therein relating to the plan sale of distribution with respect to such the Registrable Securities, including, without limitation, information with respect to the number 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 Underwritten (or best efforts underwritten) offering Offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus prospectus supplement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment;
(f) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the prospectus (after initial filing of the Registration Statement), make available representatives of the Company for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request;
(g) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(gh) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus prospectus or any amendment or supplement thereto;
(hi) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(ij) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(jk) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k1) upon the occurrence of any event contemplated by paragraph (c)(6Section 7(c)(6) above, prepare a supplement or posteffective post-effective amendment to the Registration Statement or the related Prospectus prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus 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;
(lm) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Companylisted;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connectionconnection therewith, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Underwritten Registration, (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreementofferings; (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 managing underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder and the underwriters, if anyincluded in such registration, covering the matters customarily covered in opinions requested in underwritten offerings Underwritten Offerings and such other matters as may be reasonably requested by such holders and underwriters); (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offeringsUnderwritten Offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 9 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k1) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable, an earnings statements satisfying statement covering a period of 12 months, beginning within three months after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders cooperate with each seller of Registrable Securities and to each underwriter participating in the managing underwriters, if any, make the Company's representatives available for discussion disposition of such document Registrable Securities and make such changes their respective counsel in such document prior connection with any filings required to be made with the filing thereof as counsel for such selling holders or underwriters may reasonably requestNational Association of Securities Dealers, Inc. (the "NASD"). The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k7(l) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus prospectus contemplated by Section 6(k7(l) hereof, or until it is advised in writing (the "AdviceADVICE") by the Company that the use of the Prospectus prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectusprospectus, and, if so directed by the Company, Company such holder will deliver to the Company (at the Company's expense) ), all copies, other than permanent file copies then in such holder's possession, of the Prospectus prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance effectiveness of such Registration Statement Statements set forth in Section 5 hereof and Section 7(b) hereof shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(67(c)(6) hereof to and including the date when each seller the selling holders of Registrable Securities covered by such Registration Statement registration statement shall have received the receive copies of the supplemented or amended prospectus contemplated by Section 6(k7(l) hereof or the Advice.
Appears in 1 contract
Samples: Settlement Agreement (Incomnet Inc)
Registration Procedures. In connection with the Company's registration obligations pursuant (a) Parent Covenants. Whenever Parent is hereunder required to Section 3 hereof, the Company will use its best efforts to effect such the registration to permit under the sale Securities Act of such Registrable Securities any shares of Parent Common Stock as provided in accordance with the intended method or methods of distribution thereofSection 11.1, and pursuant thereto the Company will as expeditiously as possibleParent shall:
(ai) prepare and file with the SEC, as soon as practicable, a Commission the requisite Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof to effect such registration and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and thereafter use its best efforts to cause such Registration Statement to become effective; , provided that before filing a Parent may discontinue any registration of its Other Shares (and, under the circumstances specified in Subsection 11.1(a), its securities which are shares of Parent Common Stock) at any time prior to the effective date of the Registration Statement or Prospectus or any amendments or supplements relating thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(bii) prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods until such securities have been disposed of distribution by the sellers thereof set forth in such Registration Statement;
(iii) furnish to each Piggyback Shareholder such number of conformed copies of the Registration Statement, and of each amendment and supplement thereto, such number of copies of the prospectus contained in such Registration Statement or supplement to and any other prospectus filed under Rule 424 under the Prospectus; Securities Act, in conformity with the Company shall not be deemed to have used requirements of the Securities Act, and such other documents as such Piggyback Shareholder may reasonably request;
(iv) use its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of all securities covered by such Registrable Securities for offer and sale Registration Statement under the such other securities or blue sky laws of such United States jurisdictions as each seller thereof shall reasonably request, to keep such registration or qualification in effect for so long as the Registration Statement remains in effect, and to take any seller or underwriter other action which may be reasonably requests in writing and do any and all other acts or things necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered securities owned by the Registration Statement; provided such seller, except that the Company will Parent shall not for any such purpose be required to (a) qualify generally to do business as a foreign corporation in any jurisdiction where wherein it is would not then be obligated to be so qualified but for the requirements of this subsection; (b) subject itself to taxation in any such jurisdiction; or to take any action which would subject it (c) consent to general service of or process in any such jurisdiction where it is not then so subjectjurisdiction;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(jv) use its best efforts to cause the Registrable Securities all shares of Parent Common Stock covered by the applicable such Registration Statement to be registered with or approved by such other governmental agencies or authorities of United States jurisdictions as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kvi) upon the occurrence furnish to each seller of any event contemplated by paragraph (c)(6) aboveshares of Parent Common Stock a signed counterpart, prepare a supplement or posteffective amendment addressed to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities seller and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.of:
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of shares of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in the selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(ksection 5(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective posteffective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (on) below cease to be true and correctcorrect in any material respect, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue in any material respect or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible momenttime;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringUnderwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of shares 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 number 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 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 posteffective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities securities covered by the applicable Registration Statement 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed listed, to the degree the Common Stock is so listed, on each securities exchange on which similar securities issued by the Company are Common Stock is then listed if requested by the holders of a majority of shares of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agents with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Underwritten Registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase AgreementUnderwritten 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 managing underwriters, if any, and the holders of a majority of shares 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwritersUnderwritten Offerings; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by to underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said SectionUnderwritten Offerings; and (54) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of shares of the Registrable Securitiessecurities, any underwriter participating in any disposition pursuant to such registrationRegistration Statement, and any attorney or accountant retained by the sellers selling holders or underwriterunderwriters, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration Statement; provided that any records, information or documents that are designated by the Company company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;; and
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offeringan Underwritten Offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(ksection 5(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k5(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use use, of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such the effectiveness of any Registration Statement filed pursuant to Section 3 hereof shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6section 5(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(ksection 5(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Earthshell Container Corp)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 registrations under SECTION 1 hereof, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
Pentegra shall (a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and (including post-effective amendments amendments) to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, registration statement and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease related prospectus to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to appropriately reflect the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to of the number securities registered thereunder until the completion of Registrable Securities being sold to such underwriters, the purchase price being paid therefor distribution contemplated by such underwriters and with respect registration statement or for so long thereafter as a dealer is required by law 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, a prospectus in connection with the offering offer and sale of the shares of Registrable Securities Common covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the such registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions statement and/or as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may shall be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of so that neither such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or registration statement nor the related Prospectus or prospectus shall contain any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;
misleading and so that such registration statement and the related prospectus will otherwise comply with applicable legal requirements; (lb) cause provide to any Stockholder requesting to include shares of Registrable Common in such registration statement and a single counsel for all holders of Registrable Securities covered by the Registration Statement Common requesting to include shares of Registrable Common in such registration statement, which counsel shall be listed on each securities exchange on which similar securities issued by the Company are then listed if requested selected by the holders of a majority of such shares of Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order Common requested to expedite or facilitate the disposition of such Registrable Securities and be included in such connection, whether or not an underwriting agreement is entered into registration statement and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 Pentegra, an opportunity to review and provide comments with respect to such registration statement (and any post-effective amendment thereto) prior to such registration statement (or post-effective amendment) becoming effective; (c) use its best efforts to register and qualify the managing underwriters, if any, and Registrable Common covered by such registration statement under applicable securities or "Blue Sky" laws of such jurisdictions as the holders of a majority shall reasonably request for the distribution of the Registrable Common; (d) take such other actions as are reasonable and necessary to comply with the requirements of the Securities being sold) addressed to each selling holder Act and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings rules and such other matters as may be reasonably requested by such holders and underwritersregulations thereunder; (3f) obtain "cold comfort" letters furnish such number of prospectuses (including preliminary prospectuses) and updates thereof documents incident thereto as a Stockholder from the Company's independent certified public accountants addressed time to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offeringstime may reasonably request; (4e) if an underwriting agreement is entered into, the same shall set forth provide to any Stockholder requesting to include Registrable Common in full the indemnification provisions such registration statement and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the any managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationdistribution thereof, and to any attorney attorney, accountant or accountant other agent retained by the sellers Stockholder or managing underwriter, all financial reasonable access to appropriate officers and other records, pertinent corporate documents directors of Pentegra to ask questions and properties of the Company, and cause the Company's officers, directors and employees to supply all obtain information reasonably requested by any such representativeStockholder, managing underwriter, attorney attorney, accountant or accountant other agent in connection with such registration; provided registration statement or any amendment thereto, provided, however, that (i) in connection with any such access or request, any such requesting persons shall cooperate to the extent reasonably practicable to minimize any disruption to the operation by Pentegra of its business and (ii) any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons requesting persons, unless (1) such records, information or documents are in the public domain or otherwise publicly available or (2) disclosure of such records, information or documents is required by court or administrative order;
order or by applicable law (pincluding, without limitation, the Securities Act); (h) list or include such Registrable Common on any securities exchange or quotation system on which any stock of Pentegra is then listed or included, if the listing or inclusion of such Registrable Common is then permitted under the rules of such exchange or quotation system; (i) use its best efforts to keep the Stockholder informed of Pentegra's best estimate of the earliest date on which such registration statement or any post-effective amendment thereto will become effective and will notify Stockholder and the managing underwriters participating in the distribution pursuant to such registration statement promptly (i) when Pentegra is informed that such registration statement or any post-effective amendment to such registration statement becomes effective, (ii) of any request by the SEC for an amendment or any supplement to such registration statement or any related prospectus, (iii) of the issuance by the SEC of any stop order suspending the effectiveness of such registration statement or of any order preventing or suspending the use of any related prospectus or the initiation or threat of any proceeding for that purpose, (iv) of the suspension of the qualification of any shares of Registrable Common included in such registration statement for sale in any jurisdiction or the initiation or threat of a proceeding for that purpose, (v) of any determination by Pentegra that an event has occurred which makes untrue any statement of a material fact made in such registration statement or any related prospectus or which requires the making of a change in such registration statement or any related prospectus in order that the same 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 and (vi) of the completion of the distribution contemplated by such registration statement if it relates to an offering by Pentegra; (j) in the event of the issuance of any stop order suspending the effectiveness of such registration statement or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any shares of Registrable Common included in such registration statement for sale in any jurisdiction, use its best efforts promptly to obtain its withdrawal; and (k) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable, but not later than fifteen months after the effective date of such registration statement, an earnings statements satisfying statement covering the period of at least twelve months beginning with the first full fiscal quarter after the effective date of such registration statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Pentegra Dental Group Inc)
Registration Procedures. In connection with Whenever the Company's registration obligations Committee or Stockholders request that any Registrable Securities be registered pursuant to Section 3 hereof3.1, 3.2, 3.3 or 3.4, subject to the provisions of such Sections and in particular without prejudice to Section 3.1(f), the Company will shall use its best all reasonable efforts to effect such the registration to permit and the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofdisposition thereof as quickly as practicable, and pursuant thereto the Company will as expeditiously as possible:and, in connection with any such request (in all cases, without prejudice to Section 3.1(f)):
(a) The Company shall as expeditiously as possible prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements registration statement on any appropriate form under for which the Securities ActCompany then qualifies or that counsel for the Company shall deem appropriate, which shall comply as to form with 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 and which form shall be available for the sale of the Registrable Securities to be registered thereunder in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use best all reasonable efforts to cause such Registration Statement filed registration statement to become effective; provided and remain effective for a period of not less than 90 days (or such shorter period in which all of the Registrable Securities of the Participating Stockholders included in such registration statement shall have actually been sold thereunder). The Company shall (i) use all reasonable efforts to not take any action that before would cause a registration statement to contain a material misstatement or omission or 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 (ii) cause each registration statement and the related prospectus and any amendment or supplement thereto, as of the effective date of such registration statement, amendment or supplement, (x) to comply in all material respects with any requirements of the Securities Act and the rules and regulations of the SEC and (y) not to contain any untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
(b) Prior to filing a Registration Statement registration statement or Prospectus prospectus or any amendments amendment or supplements supplement thereto, the Company will shall, if requested, furnish to the holders each Participating Stockholder and each underwriter, if any, of the Registrable Securities covered by such Registration Statement and the underwriters, if any, registration statement copies of all such documents registration statement as proposed to be filed, which and thereafter the Company shall furnish to such Stockholder and underwriter, if any, without charge, as many copies of such registration statement, each amendment and supplement thereto or the prospectus included therein (in each case including all exhibits thereto and documents will incorporated by reference therein or otherwise deemed to be subject a part thereof), the prospectus included in such registration statement (including each preliminary prospectus, and any summary prospectus) and any other prospectus filed under Rule 424, Rule 430A or Rule 430B under the Securities Act (including any "issuer free writing prospectus" as such term is defined in Rule 433 of the Securities Act regulations) and such other documents as such Stockholder or underwriter may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Stockholder. The Company hereby consents to the reasonable review use of such holders the prospectus, including each preliminary prospectus, by each Participating Stockholder and underwriterseach underwriter, if any, in connection with the offering and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority sale of the Registrable Securities covered by such Registration Statement the prospectus or the underwriterspreliminary prospectus (such Stockholders hereby agreeing not to make a broad public dissemination of a form of preliminary prospectus which is designed to be a "quiet filing" without the Company's consent, such consent to not be withheld unreasonably). The Company shall, upon request, furnish to the sole underwriter or lead managing underwriter, if any, without charge, at least one signed copy of each registration statement and any post-effective amendment thereto, including financial statements and schedule, all documents incorporated therein by reference and all exhibits; and furnish to each Participating Stockholder, without charge, at least one conformed copy of each registration statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested). Each Participating Stockholder shall have the right to request that the Company modify any information contained in such registration statement, amendment and supplement thereto pertaining to such Stockholder and the Company shall use all reasonable efforts to comply with such request, PROVIDED, HOWEVER, that the Company shall not have any obligation to so modify any information if the Company reasonably object;expects that so doing would cause the 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 not misleading.
(bc) After the filing of the registration statement, the Company shall (i) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement each such registration statement, as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; (ii) cause the Prospectus related prospectus to be supplemented by any required Prospectus prospectus supplement, and and, as so supplemented supplemented, to be filed pursuant to Rule 424 under the Securities Act; and , (iii) 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 during the applicable period in accordance with the intended method or methods of distribution disposition by the sellers thereof Participating Stockholders set forth in such Registration Statement registration statement or supplement to such prospectus and (iv) promptly notify each Participating Stockholder holding Registrable Securities covered by such registration statement of any stop order issued or threatened by the Prospectus; SEC or any state securities commission and use all reasonable efforts to prevent the entry of such stop order or to remove it if entered.
(d) The Company shall use all reasonable efforts to (i) register or qualify the Registrable Securities covered by such registration statement, no later than the time the applicable registration statement is declared effective by the SEC, under such other securities or "blue sky" laws of such jurisdictions in the United States as any Participating Stockholder holding such Registrable Securities reasonably (in light of such Stockholder's intended plan of distribution) requests, (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) cause such Registrable Securities to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable to enable such Stockholder to consummate the disposition of the Registrable Securities owned by such Stockholder, PROVIDED that the Company shall not be deemed required to have used its best efforts (1) qualify generally to keep a Registration Statement effective during the applicable period if do business in any jurisdiction where it voluntarily takes would not otherwise be required to qualify but for this Section 3.6(d), (2) subject itself to taxation in any action that would result such jurisdiction or (3) consent to general service of process in selling holders of the any such jurisdiction.
(e) The Company shall immediately notify each Participating Stockholder holding such Registrable Securities covered thereby not being able by such registration statement, at any time when (1) a Blackout Period is imposed or (2) a prospectus relating thereto is required to sell be delivered under the Securities Act, of the occurrence of an event or the existence of any facts or circumstances requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities during that period unless Securities, such action is prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under applicable lawwhich they were made, provided that the foregoing shall not apply misleading and promptly prepare and make available to actions taken by the Company in good faith each such Stockholder and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies file with the requirements of Section 6(k), if applicable;SEC any such supplement or amendment.
(cf) The Company shall notify the selling holders of Registrable Securities and the managing underwriters, if any, each Participating Stockholder promptly, and (and, if requested by any such Person) Stockholder, confirm such advice in writing, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or has become effective and when any post-effective amendment, when the same has amendments and supplements thereto become effective, (2ii) if, between the effective date of a registration statement and the closing of any request by sale of securities covered thereby pursuant to any agreement to which the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional informationCompany is a party, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below contained in such agreement cease to be true and correct, (5) of the receipt by correct in all material respects or if the Company of receives 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 and (6iii) of the happening of any event during the period a registration statement is effective as a result of which makes such registration statement or the related prospectus contains any untrue statement made in the Registration Statement, the Prospectus of a material fact or omits to state any document incorporated material fact required to be stated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order necessary to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);.
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the The Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or shall cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities Participating Stockholders and the sole underwriter or lead managing underwritersunderwriter, 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 (consistent with the provisions of the governing documents thereof) and registered in such names as the selling Participating Stockholders or the sole underwriter or lead managing underwriters underwriter, if any, may reasonably request at least two business days three Business Days prior to any sale of Registrable Securities to the underwriters;Securities.
(jh) use its best efforts Except as expressly provided elsewhere in this Agreement, the Company shall have the right to cause select an underwriter or underwriters in connection with any Underwritten Public Offering resulting from the Registrable Securities covered exercise by the applicable any Stockholder of a Demand Registration Statement to be registered or in connection with or approved by such other governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so Underwritten Public Offering; PROVIDED that, as thereafter delivered to in connection with any Demand Registration where the purchasers of the Company will not be selling any Registrable Securities, the Prospectus will not contain an untrue statement Stockholder holding the largest number of a material fact or omit to state any material fact necessary to make the statements therein not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit to be sold under such Demand Registration shall have the right to select the underwriters. In connection with Depositary Trust Company;
(n) any Public Offering, the Company shall enter into such customary agreements (including an underwriting agreementagreement in customary form) and take all such other actions as are reasonably required in order to expedite or facilitate the disposition of such Registrable Securities in any such Public Offering, including the engagement of a "qualified independent underwriter" in connection therewith with the qualification of the underwriting arrangements with the NASD.
(i) Upon execution of confidentiality agreements in form and substance reasonably satisfactory to the Company by any Participating Stockholder and any underwriter participating in any disposition pursuant to a registration statement being filed by the Company pursuant to this Section 3.6, the Company shall make available for inspection by such Participating Stockholder and any such underwriter and any attorney, accountant or other professional retained by any such Stockholder or underwriter (collectively, the "INSPECTORS"), all financial and other records, pertinent corporate documents and properties of the Company (collectively, the "RECORDS") as shall be reasonably necessary or desirable to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees to participate in discussions with, and supply all information reasonably requested by, any Inspectors in connection with such registration statement. Records that the Company determines, in good faith, to be confidential and that it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such registration statement or (ii) the release of such Records is required pursuant to applicable law or regulation or judicial process.
(j) The Company shall enter into customary agreements (including, in the case of an underwritten offering, underwriting agreements in customary form, and including provisions with respect to indemnification and contribution in customary form and consistent with the provisions relating to 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 such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration connection therewith:
(1) make such representations and warranties to the holders of such Registrable Securities Participating Stockholders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary similar underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; 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 underwritersunderwriter, if any, and the holders Participating Stockholder holding the largest number of a majority of the Registrable Securities being sold) addressed to each selling holder Participating Stockholder and the underwriters, if any, covering the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders sales of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary securities or underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Uici)
Registration Procedures. In connection with the Company's registration obligations of any Registrable Securities pursuant to Section Sections 2 or 3 hereof, the Company will use its best efforts to Issuers shall effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleIssuers shall:
(a) Use their reasonable best efforts to prepare and file with the SEC, as soon as practicablepracticable after the date hereof but in any event prior to the Filing Date in the case of the Exchange Registration Statement and the 45th day following the Consummation Date in the case of the Shelf Registration Statement, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method as prescribed by Section 2 or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD3, and to use their reasonable best efforts to cause each such Registration Statement to become effective; effective and remain effective as provided that herein, provided that, if (1) such filing is pursuant -------- to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, before filing a any Registration Statement or Prospectus or any amendments or supplements thereto, the Company will Issuers shall upon written request furnish to and afford the holders Holders of the Registrable Securities (which in the case of Registrable Securities in the form of global certificates shall be The Depository Trust Company ("DTC")) and each such Participating Broker-Dealer, as the case may be, covered by such Registration Statement Statement, their counsel and the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;.
(b) prepare Prepare and file with the SEC such amendments and post-effective amendments to each Shelf Registration or Exchange Registration Statement, as the Registration Statement case may be, as may be necessary to keep the such Registration Statement continuously effective for the applicable periodEffectiveness Period or the Applicable Period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldas the case may be; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act, the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method as so amended or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus; the Company Issuers shall not be deemed to have used its their reasonable best efforts to keep a Registration Statement effective during the applicable period Applicable Period if it the Issuers voluntarily takes take any action that would result in selling holders Holders of the Registrable Securities covered thereby or Participating Broker-Dealers seeking to sell Exchange Securities not being able to sell such Registrable Securities or such Exchange Securities during that period unless such action is required under by applicable law, provided that law or unless the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasonsIssuers comply with this Agreement, including without limitation limitation, the acquisition or divestiture provisions of assets, so long as paragraph 5(k) hereof and the Company promptly thereafter complies with the requirements last paragraph of this Section 6(k), if applicable;5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3, or (2) a Prospectus contained in an Exchange Registration Statement filed pursuant to Section 2 is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Securities during the Applicable Period, notify the selling holders Holders of Registrable Securities Securities, or each such Participating Broker-Dealer, as the case may be, their counsel and the managing underwriters, if any, promptlywho have provided the Issuers with their names and addresses promptly (but in any event within two business days), and (if requested by any such Person) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effectiveeffective under the Securities Act (including in such notice a written statement that any Holder may, (2) upon request, obtain, without charge, one conformed copy of any request by the SEC for amendments or supplements to the such Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is deemed to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statementand exhibits), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.,
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofof the Company under Sections 3, 4 and 5, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possibleshall:
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements with respect to such Registrable Securities on any appropriate registration form under adopted by the Securities ActSEC for which the Company then qualifies or which counsel for the Company shall deem appropriate, and which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use reasonable best efforts to cause such Registration Statement to become and remain effective; provided that before that, at least five Business Days prior to filing a Registration Statement or Prospectus or any amendments amendment or supplements supplement thereto, the Company will shall furnish to a single counsel selected by the holders Holders of a Majority of the Registrable Securities covered by included or to be included in such Registration Statement and the underwriters, if any, copies of all such documents Registration Statement or Prospectus (or amendment or supplement) as proposed to be filedfiled (including, upon the request of such counsel, documents to be incorporated by reference therein) which documents will shall be subject to the reasonable review and comments of such holders counsel and underwritersthe Holders of the Registrable Securities included or to be included in such Registration Statement during such five-Business-Day period, and the Company will shall not file any Registration Statement or amendment thereto or Statement, any Prospectus or any amendment or supplement thereto (or any such documents incorporated by reference) containing any statements with respect to any such Holder to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, Holder shall reasonably objectobject in writing;
(b) prepare and file with the SEC such amendments and post-effective amendments to the such Registration Statement and such amendments and supplements to the Prospectus used in connection therewith as may be necessary to maintain the effectiveness of such registration or as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations thereunder necessary to keep the such Registration Statement effective for until the applicable period, or such shorter period earlier of (i) the date on which will terminate when all the Registrable Securities covered by such Registration Statement cease to be Registrable Securities or have been sold; sold or withdrawn and (ii) subject to Sections 9(e) and 9(k), (x) in the case of the Shelf Registration, until the third anniversary of the date of initial effectiveness of the Shelf Registration Statement, plus any Suspension Periods (which shall be added to such three-year period), or (y) in the case of a Registration Statement filed pursuant to Section 4 which does not contemplate an Underwritten Offering, for at least 120 days or (z) in the case of a Registration Statement filed pursuant to Section 4 which contemplates an Underwritten Offering, for at least 120 days plus such longer period (not to exceed 90 days after the 120th day) as, in the opinion of counsel for the underwriter or underwriters of such Underwritten Offering, is required by law for the delivery of a Prospectus in connection with the sale of Registrable Securities by an underwriter or dealer, and cause the Prospectus to be supplemented by any required Prospectus supplement, and as so amended and supplemented to be filed pursuant to Rule 424 under the Securities Act; , and otherwise use reasonable best efforts to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during until such time as is specified in clause (i) or (ii) above, as the case may be;
(c) furnish to each Holder of such Registrable Securities such number of copies of such Registration Statement and of each amendment and post-effective amendment thereto, any Prospectus or Prospectus supplement and such other documents as such Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder (the Company hereby consenting to the use (subject to the limitations set forth in Section 10(b)) of the Prospectus or any amendment or supplement thereto in connection with such disposition);
(d) use reasonable best efforts to register or qualify such Registrable Securities covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions as each Holder shall reasonably request, and to do any and all other acts and things which may be reasonably necessary to enable such Holder to consummate the disposition in such jurisdictions of the Registrable Securities owned by such Holder, except that the Company shall not be required for any such purpose to qualify generally to do business as a foreign corporation in any jurisdiction where, but for the requirements of this Section 9(d), it would not be obligated to be so qualified, to subject itself to taxation in any such jurisdiction, or to consent to general service of process in any such jurisdiction;
(e) promptly notify each Holder of any such Registrable Securities covered by such Registration Statement, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act within the applicable period referred to in accordance with Section 9(b), that the intended method Company has become aware that the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of material fact or methods omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of distribution by the sellers thereof set forth circumstances then existing (the period during which the Holders are required in such case pursuant to Section 10(b) to refrain from effecting public sales or distributions of Registrable Securities referred to herein as a "Section 9(e) Period"), and prepare and furnish to such Holder, as soon as reasonably practicable, without charge to such Holder, a reasonable number of copies of an amendment to such Registration Statement or supplement to such related Prospectus as may be necessary so that, as thereafter delivered to the Prospectuspurchasers of such Registrable Securities, such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; provided that if the Company gives such notice, the Company shall not be deemed to have used its best efforts to keep a extend the period during which such Registration Statement shall be maintained effective during (including the applicable period if it voluntarily takes any action that would result periods referred to in selling holders Section 9(b)) by the number of days in the Section 9(e) Period;
(f) promptly notify each Holder of Registrable Securities covered thereby not being able to sell by such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;Registration Statement at any time,
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1i) when the Prospectus or any Prospectus supplement or post-post- effective amendment has been filed, filed and, with respect to the Registration Statement or any post-effective amendment, when the same Registration Statement or such post-effective amendment has become effective, ;
(2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3ii) of the issuance by the Commission SEC of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement or any order preventing the use of a related Prospectus, or the initiation of any proceedings for that purpose, such purposes; and
(4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5iii) of the receipt by of the Company of any written notification with respect to of the suspension of the qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose;
(6g) make available to its stockholders, as soon as reasonably practicable, an earnings statement which shall satisfy the provisions of Section 11(a) of the happening Securities Act, provided that the Company shall be deemed to have complied with this Section 9(g) if it has complied with Rule 158 under the Securities Act;
(h) if the registration involves an Underwritten Offering, enter into a customary underwriting agreement and in connection therewith:
(i) make such representations and warranties to the underwriters in form, substance and scope as are customarily made by issuers to underwriters in comparable Underwritten Offerings;
(ii) use reasonable best efforts to obtain opinions of counsel to the Company (in form, scope and substance reasonably satisfactory to the managing underwriters), addressed to the underwriters, and covering the matters customarily covered in opinions requested in comparable Underwritten Offerings;
(iii) use reasonable best efforts to obtain "cold comfort" letters and bring-downs thereof from the Company's independent certified public accountants addressed to the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by independent accountants in connection with Underwritten Offerings; and
(iv) deliver such documents and certificates as may be reasonably requested by the managing underwriters to evidence compliance with any event which makes any statement made customary conditions contained in the underwriting agreement;
(i) cooperate with the Holders of Registrable Securities covered by such Registration Statement and the managing underwriter or underwriters or agents, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing the securities to be sold under such Registration Statement, and enable such securities to be in such denominations and registered in such names as the Prospectus managing underwriter or any document incorporated therein by reference untrue underwriters or which requires the making of any changes in the Registration Statementagents, the Prospectus if any, or any document incorporated therein by reference in order to make the statements therein not misleadingsuch Holders, may request;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(ej) if reasonably requested by the managing underwriter or underwriters or a holder Holder of Registrable Securities being sold in connection with an underwritten offeringUnderwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the managing underwriters and the holders Demand Holders of a majority Majority of the Registrable Securities being sold by all Demand Holders 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 number 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 Underwritten Offering of the Registrable Securities to be sold in such offering; offering and make all required filings of such Prospectus supplement or post-effective amendment as soon as upon being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(fk) furnish to each selling holder in the event of Registrable Securities and each managing underwriter, without charge, at least one signed copy the issuance of any stop order of which the Company is aware suspending the effectiveness of the Registration Statement and Statement, or of any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment order suspending or supplement thereto as such Persons may reasonably request; the Company consents to preventing the use of the any related Prospectus or suspending the qualification of any amendment or supplement thereto by each of the selling holders of Registrable Securities and included in the underwritersRegistration Statement for sale in any jurisdiction, if any, in connection with use reasonable best efforts to obtain at the offering and sale of earliest practicable time the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification withdrawal of such Registrable Securities for offer stop order or other order (the period between the issuance and sale under the securities withdrawal of any stop order or blue sky laws of such jurisdictions other order referred to herein as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementa "Section 9(k) Period"); provided that the Company shall extend the period during which such Registration Statement will not be required maintained effective (including the periods referred 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 in any such jurisdiction where it is not then so subject;
(iSection 9(b)) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable number of days in the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kSection 9(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleadingPeriod;
(l) use reasonable best efforts to cause all Registrable Securities Conversion Shares, Warrant Shares and Commitment Fee Shares covered by the such Registration Statement to be listed on each any securities exchange or automated quotation system on which similar securities issued by the Company Common Stock is then listed, if such Conversion Shares, Warrant Shares and Commitment Fee Shares are not already so listed and if such listing is then listed if requested by permitted under the holders of a majority rules of such Registrable Securities securities exchange or the managing underwriters, if anyautomated quotation system;
(m) in the case of an Underwritten Offering, cause the senior executive officers of the Company to participate in the customary "road show" presentations that may be reasonably requested by the lead managing underwriter in any such Underwritten Offering and otherwise to cooperate with and participate in customary selling efforts related thereto;
(n) upon the request of any Holder, promptly amend any Shelf Registration Statement or take such other action as may be necessary to de-register, remove or withdraw all or any portion of the Holder's Registrable Securities from a Shelf Registration Statement, as requested by such Holder;
(o) not later than the effective date of the applicable Registration Statement, provide a CUSIP number for all Registrable Securities and and, unless such Registrable Securities shall be registered in book-entry form, provide the applicable trustee(s) or transfer agent(s) agent and registrar for such Registrable Securities with printed certificates for the Registrable Securities Securities, which are certificates shall be in a form eligible for deposit with Depositary The Depository Trust Company;
(np) enter into such agreements (including an underwriting agreement) provide and take cause to be maintained a transfer agent and registrar for all such other actions in connection therewith in order to expedite or facilitate Registrable Securities covered by the disposition applicable Registration Statement from and after a date not later than the effective date of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration Registration Statement;
(1q) make such representations available upon reasonable notice at reasonable times and warranties to for reasonable periods for inspection by one representative appointed by 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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders Holders of a majority Majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the applicable Registration Statement, by any managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement underwriter or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter underwriters participating in any disposition Underwritten Offering to be effected pursuant to such registrationRegistration Statement, and by any attorney attorney, accountant or accountant other agent retained by the sellers such Holders or any such managing underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees and the independent public accountants who have certified its financial statements to make themselves available during normal business hours to discuss the business of the Company and to supply all information reasonably requested by any such representative, underwriter, attorney Holders or accountant managing underwriter or agent thereof in connection with such registration; provided that any records, information or documents that are designated by the Company in writing Registration Statement as confidential shall be kept confidential by necessary to enable such Persons unless disclosure of such records, information or documents is required to exercise their due diligence responsibility (subject to the entry by court or administrative ordereach Person referred to in this Section 9(q) into customary confidentiality agreements in a form reasonably acceptable to the Company);
(pr) otherwise use its best efforts to comply with all applicable rules and regulations if requested in writing by Holders holding a Majority of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters included in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements prepare and file with the SEC amendments and post-effective amendments to such Registration Statement and amendments and supplements to the Prospectus used in connection with such Registration Statement as shall cover said 12be necessary to enable any transferee of Registrable Securities included in such Registration Statement who becomes a Holder under this Agreement to resell such Holder's Registrable Securities pursuant to such Registration Statement, to the extent that such amendments, post-month periodseffective amendments and supplements shall be required for such transferee-Holders to be named as selling securityholders in such Registration Statement and Prospectus; and
(qs) promptly prior use reasonable best efforts to take all other steps necessary to effect the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing registration of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration Registration obligations pursuant to Section Sections 3 and 4 hereof, the Company will use its best efforts to effect such registration Registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:possible (but not later than sixty (60) days after receipt of Demand Notice):
(a) prepare and file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under relating to the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method applicable Demand Registration or methods of distribution thereof Piggyback Registration including all exhibits and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, period specified in Section 3(e) or 3(h) (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldsold or withdrawn), or, if such Registration Statement relates to an Underwritten Offering, such longer period as in the opinion of counsel for the underwriters a Prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act Act, the Exchange Act, and the rules and regulations promulgated thereunder with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(cb) notify the selling holders of Registrable Securities Holders and the managing underwriters, if any, promptly, and (if requested by any such Personrequested) confirm such advice in writing, as soon as practicable after notice thereof is received by the Company (1i) when the Registration Statement or any amendment thereto has been filed or becomes effective, the Prospectus or any amendment or supplement to the Prospectus supplement or post-effective amendment has been filed, and, to furnish such selling Holders and managing underwriters with respect to the Registration Statement or any post-effective amendment, when the same has become effectivecopies thereof, (2ii) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement or any order preventing or suspending the use of any preliminary Prospectus or Prospectus or the initiation or threatening of any proceedings for that purposesuch purposes, (4iv) if at any time the representations and warranties of the Company contemplated by paragraph (ol) below cease to be true and correct, correct and (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for offering or sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose purpose;
(i) promptly notify the selling Holders and the managing underwriters, if any, at any time during the period contemplated by paragraph (6a) above, when the Company becomes aware of the happening of any event as a result of which makes any statement made in the Registration Statement, the Prospectus included in such Registration Statement (as then in effect) contains any untrue statement of a material fact or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order omits to state a material fact necessary to make the statements therein (in the case of the Prospectus and any preliminary Prospectus, in light of the circumstances under which they were made) when such Prospectus was delivered not misleadingmisleading or, if for any other reason it shall be necessary during such time period to amend or supplement the Prospectus in order to comply with the Securities Act and, (ii) in either case as promptly as practicable thereafter, prepare and file with the SEC, and furnish without charge to the selling Holders and the managing underwriters, if any, a supplement or amendment to such Prospectus which will correct such statement or omission or effect such compliance;
(d) make every reasonable effort to prevent the entry, or obtain the withdrawal withdrawal, of any stop order or other order suspending the effectiveness use of any preliminary Prospectus or Prospectus or suspending any qualification of the Registration Statement at the earliest possible momentRegistrable Securities;
(e) if requested by the managing underwriter or underwriters or a holder Holder of Registrable Securities being sold in connection with an underwritten offeringUnderwritten Offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders Holders of a majority of the Registrable Securities being sold 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 number 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 Underwritten (or best efforts underwritten) offering 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;
(f) furnish to each selling holder of Registrable Securities Holder and each managing underwriter, without charge, at least one signed executed copy and as many conformed copies as they may reasonably request, of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities Holder and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectusProspectus) and any amendment or supplement thereto as such Persons may reasonably request; request (it being understood that the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto) and such other documents as such selling Holder may reasonably request in order to facilitate the disposition of the Registrable Securities by such Holder;
(h) on or prior to any public offering of Registrable Securitiesthe date on which the Registration Statement is declared effective, use its best efforts to register or qualify or qualify, and cooperate with the selling holders of Registrable SecuritiesHolders, the underwritersmanaging underwriter, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions each state and other jurisdiction of the United States as any seller or such seller, underwriter reasonably requests in writing and do any and all other acts or things reasonably necessary or advisable to enable keep such registration or qualification in effect for so long as such Registration Statement remains in effect and so as to permit the disposition in such jurisdictions continuance of sales and dealings therein for as long as may be necessary to complete the distribution of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling holders of Registrable Securities Holders and the managing underwritersunderwriter, 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement to be registered with or approved by such other U.S. governmental agencies or authorities as may be necessary to enable the seller or sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statementapplicable Registration, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) trustee or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanySecurities;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1l) make such representations and warranties to the holders Holders of such Registrable Securities being registered, and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings public offerings;
(m) enter into such customary agreements (including an underwriting agreement) and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and take all such other matters actions as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders Holders of a majority of the Registrable Securities being sold and or the managing underwritersunderwriter, if any, reasonably request in order to evidence compliance with clause (k) above expedite or facilitate the Registration and with disposition of such Registrable Securities, including, without limitation, participation in any customary conditions contained in the underwriting agreement market effort or other agreement entered into road shows as reasonably requested by the Company. The above shall be done at each closing under such underwriting or similar agreement or as Holders;
(n) obtain for delivery to the Holders of Registrable Securities being registered and to the extent required thereunderunderwriter an opinion or opinions from counsel for the Company, upon consummation of the sale of such Registrable Securities to the underwriters (the "Closing Date") in customary form and in form, substance and scope reasonably satisfactory to such Holders and their counsel, and the underwriters and their counsel;
(o) obtain for delivery to the Company and the underwriter, with copies to the Holders, 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 as the managing underwriter or the Holders of a majority of the Registrable Securities being sold reasonably request, dated the effective date of the Registration Statement and brought down to the Closing Date;
(p) cooperate with each seller of Registrable Securities and each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD;
(q) make available for inspection by a representative of the holders Holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registrationRegistration, and any attorney or accountant retained by the sellers such Holders or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registrationRegistration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderlaw;
(pr) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, SEC and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(aas soon as reasonably practicable (but not more than eighteen months) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; andan earnings statement satisfying the provisions of Section 11 (a) of the Securities Act and the rules and regulations promulgated thereunder;
(qs) as promptly prior to as practicable after filing with the filing SEC of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement)Prospectus, provide copies of such document to counsel to for the selling holders of Registrable Securities Holders and to the managing underwriters, if any, make ;
(t) provide and cause to be maintained a transfer agent and registrar for all Registrable Securities covered by such Registration Statement from and after a date not later than the effective date of such Registration Statement; (u) use its best efforts to list (if such Registrable Securities are not already listed) all Registrable Securities covered by such Registration Statement on the principal stock exchange or market on which the Company's representatives available for discussion Common Stock is then listed; and
(v) Take such further actions as are reasonably requested by the Holders in order to expedite or facilitate the disposition of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestRegistrable Securities. The Company may require each seller Holder of Registrable Securities as to which any registration Registration is being effected to furnish to the Company such information regarding the distribution of such securities and such other information relating to such Holder and its ownership of Registrable Securities as the Company may from time to time reasonably request in writing. Each holder Holder agrees to furnish such information to the Company and to cooperate with the Company as necessary to enable the Company to comply with the provisions of Registrable Securities this Agreement. Each Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k6(c)(i) hereof, such holder Holder will forthwith discontinue disposition of Registrable Securities pursuant to such Registration Statement until such holderHolder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k6(c)(ii) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holderHolder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event that the Company shall give any such notice, the time periods regarding Company shall extend the maintenance of period during which such Registration Statement registration statement shall be extended maintained effective by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(66(c)(i) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement the Company shall have received make available to the copies of the Holders a Prospectus supplemented or amended prospectus contemplated by to conform with the requirements of Section 6(k6(c)(ii) hereof or the Advicehereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Seven Seas Petroleum Inc)
Registration Procedures. In connection with the Company's registration obligations Whenever any Registrable Securities are to be registered pursuant to Section 3 hereofthis Agreement, the Company will shall use its best efforts to effect such the registration to permit the and sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possibleshall have the following obligations:
(a) The Company shall prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;.
(b) The Company shall prepare and file with the SEC Commission such amendments and (including post-effective amendments amendments) and supplements to the a Registration Statement as may be necessary to keep and the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by Prospectus used in connection with such Registration Statement have been sold; cause the Statement, which Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented is to be filed pursuant to Rule 424 promulgated under the Securities Act; and , as may be necessary to keep such Registration Statement effective at all times during the applicable Effectiveness Period, and, during such period, comply with the provisions of the Securities Act with respect to the disposition of all securities Registrable Securities of the Company covered by such Registration Statement during the applicable period until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof as set forth in such Registration Statement. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement by reason of the Company filing a report on Form 10-Q Form 10-K or any analogous report under the Securities Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the Commission on the same day on which the Securities Exchange Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.
(c) The Company shall furnish to each seller of Registrable Securities in any Registration Statement, without charge, (i) promptly after the same is prepared and filed with the Commission at least one copy of such Registration Statement and any amendment(s) thereto, including financial statements and schedules, all documents incorporated therein by reference, if requested by such seller, all exhibits and each preliminary Prospectus, (ii) upon the effectiveness of any Registration Statement, ten (10) copies of the Prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such seller may reasonably request) and (iii) such other documents, including copies of any preliminary or final Prospectus, as such seller may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such seller.
(d) The Company shall use its best efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by any seller of the Registrable Securities covered by a Registration Statement under such other securities or "blue sky" laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the applicable Effectiveness Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the applicable Effectiveness Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, that the Company shall not be deemed required in connection therewith or as a condition thereto to have used (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 2(d), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction.
(e) The Company shall use its best efforts to keep prevent the issuance of any stop order or other suspension of effectiveness of a Registration Statement effective during Statement, or the applicable period if it voluntarily takes any action that would result in selling holders suspension of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture qualification of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders any of Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and to notify the Holder of any Registrable Securities being sold of the issuance of such order and the managing underwritersresolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.
(f) The Company shall notify the Holder in writing of the happening of any event, if anyas promptly as practicable after becoming aware of such event, promptlyas a result of which the Prospectus included in a Registration Statement, as then in effect, includes an untrue statement of a material fact or omission 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 (provided that in no event shall such notice contain any material, nonpublic information), and, subject to Section 2(q), promptly prepare a supplement or amendment to such Registration Statement to correct such untrue statement or omission, and deliver ten (if requested by any 10) copies of such Personsupplement or amendment to the Holder (or such other number of copies as the Holder may reasonably request).
(g) confirm such advice The Company shall promptly notify the Holder in writing, writing (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the and when a Registration Statement or any post-effective amendment, when amendment has become effective (notification of such effectiveness shall be delivered to the Holder by facsimile on the same has become effectiveday of such effectiveness and by overnight mail), (2ii) of any request by the SEC Commission for amendments or supplements to the a Registration Statement or the related Prospectus or for additional related information, and (3iii) of the issuance by Company's reasonable determination that a post-effective amendment to a Registration Statement would be appropriate.
(h) If the Commission Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, at the reasonable request of any stop order suspending such Holder, the Company shall furnish to such Holder, on the date of the effectiveness of such Registration Statement and thereafter from time to time on such dates as the Holder may reasonably request (i) a letter, dated such date, from the Company's independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Holder, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Holder.
(i) If the Holder is required under applicable securities laws to be described in a Registration Statement as an underwriter, then at the request of such Holder in connection with such Holder's due diligence requirements, the Company shall make available for inspection by (i) the Holder, (ii) the Holder’s legal counsel, and (iii) one firm of accountants or other agents retained by the Holder (collectively, the "Inspectors"), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the "Records"), as shall be reasonably deemed necessary by each Inspector, and cause the Company's officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to the Holder) or use of any Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the initiation of any proceedings for that purposeSecurities Act, (4b) if at the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made generally available to the public other than by disclosure in violation of this or any time other agreement of which the representations and warranties Inspector has knowledge. Each Holder agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company contemplated by paragraph and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential.
(oj) below cease The Company shall hold in confidence and not make any disclosure of information concerning the Holder provided to be true and correctthe Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (5ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement, (iii) the receipt by the Company release of any notification with respect such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the suspension public other than by disclosure in violation of this Agreement or any other agreement. The Company agrees that it shall, upon learning that disclosure of such information concerning the qualification Holder is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to the Holder and allow the Holder, at the Holder’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(k) The Company shall use its best efforts either to cause all of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and (6) covered by a Registration Statement to be listed on each securities exchange on which securities of the happening same class or series issued by the Company are then listed, if any, if the listing of any event which makes any statement made such Registrable Securities is then permitted under the rules of such exchange. The Company shall pay all fees and expenses in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;connection with satisfying its obligation under this Section 2(k).
(dl) make every reasonable effort The Company shall cooperate with each Holder who holds Registrable Securities being offered and, to obtain the withdrawal extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any order suspending restrictive legend) representing the effectiveness of the Registrable Securities to be offered pursuant to an effective Registration Statement at and enable such certificates to be in such denominations or amounts, as the earliest possible moment;case may be, as the Holder may reasonably request and registered in such names as the Holder may request.
(em) if If requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringHolder, promptly the Company shall (i) as soon as practicable incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should Holder reasonably requests to be included therein relating to the plan sale and distribution of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to such underwritersoffered or sold, 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 (ii) as soon as practicable make all required filings of such Prospectus supplement or post-effective amendment as soon as after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;; and (iii) as soon as practicable, supplement or make amendments to any Registration Statement if reasonably requested by the Holder holding any Registrable Securities.
(fn) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the The Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) shall use its best efforts to cause the Registrable Securities covered by the applicable a 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;.
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the The Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SECCommission in connection with any registration hereunder.
(p) Notwithstanding anything to the contrary herein, at any time after the Effective Date of a Registration Statement, the Company may delay the disclosure of material, non-public information concerning the Company the disclosure of which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a "Grace Period"); provided, that the Company shall promptly (i) notify the Holder in writing of the existence of material, non-public information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material, non-public information to the Holder) and the date on which the Grace Period will begin, and make generally available (ii) notify the Holder in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed sixty (60) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of one hundred twenty (120) days and the first day of any Grace Period must be at least two (2) trading days after the last day of any prior Grace Period (each, an "Allowable Grace Period"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Holder receives the notice referred to its security holders, earnings statements satisfying in clause (i) and shall end on and include the later of the date the Holder receives the notice referred to in clause (ii) and the date referred to in such notice. The provisions of Section 11(a2(e) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Securities ActGrace Period, the Company shall again be bound by Section 2(f) with respect to the information giving rise thereto unless such material, non-public information is no later than 45 days after longer applicable. Notwithstanding anything to the end contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of the Holder in connection with any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end sale of any fiscal quarter in which Registrable Securities are sold with respect to underwriters in which the Holder has entered into a firm or best efforts underwritten offeringcontract for sale, or (2) if not sold to underwriters in such an offering, beginning with the first month and delivered a copy of the Company's first fiscal quarter commencing after the effective date Prospectus included as part of the applicable Registration StatementStatement (unless an exemption from such Prospectus delivery requirements exists), which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's Holder’s receipt of the copies notice of a Grace Period and for which the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and Holder has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicenot yet settled.
Appears in 1 contract
Samples: Registration Rights Agreement (Shine Media Acquisition Corp.)
Registration Procedures. In connection with the Company's registration obligations Whenever any Registrable Securities are required to be registered pursuant to Section 3 hereofthis Agreement, the Company will use its reasonable best efforts to effect such the registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SECSEC on any small business form, if not so otherwise provided for, for which the Company qualifies, as soon as practicablepracticable after the end of the period within which requests for registration may be given to the Company, a Registration Statement or Registration Statements on any appropriate form under with respect to the Securities Act, which form shall be available for the offer and sale of the such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and thereafter use reasonable best efforts to cause such Registration Statement to become effective; provided that effective and remain effective until the completion of the distribution contemplated thereby or the required time period under this Agreement, whichever is shorter (and before filing a such Registration Statement or Prospectus or any amendments or supplements theretoStatement, the Company will furnish to the counsel selected by the holders of a majority of the Registrable Securities covered by initiating such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed); provided, however, that the Company may postpone for not more than sixty (60) calendar days the filing or effectiveness of any registration statement required pursuant to this Agreement other than a Required Registration Statement required to be filed pursuant to Section 1.1 of this Agreement, if the Board of Directors, in its good faith judgment, determines that such registration could reasonably be expected to have a material adverse effect on the Company and its stockholders for any reason including, but not limited to, any proposal or plan by the Company to engage in any acquisition or sale of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or similar transaction then under consideration (in which documents event, the Designated Holders shall be entitled to withdraw such request, and if such request is withdrawn such registration will be subject not count as a registration statement pursuant to this Agreement) by delivering written notice to the reasonable review Designated Holders who requested inclusion of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by in such Registration Statement or of its determination to postpone such Registration Statement; provided, further, that the underwriters, if any, Company shall reasonably objectnot disclose any information that could be deemed material non-public information to any holder of Registrable Securities included in a Registration Statement that is subject to such postponement;
(b) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for a period provided for in the applicable periodSection above, or if not so provided, for a period of twelve (12) months (for a registration pursuant to Rule 415 of the Securities Act) or, if such Registration Statement relates to an underwritten offering, such period as in the opinion of counsel for the underwriters a prospectus is required by law to be delivered in connection with sales of Registrable Securities by an underwriter or dealer or such shorter period which as will terminate when all Registrable Securities of the securities covered by such Registration Statement have been sold; cause disposed of in accordance with the Prospectus to be supplemented intended methods of disposition by the seller or sellers thereof set forth in such Registration Statement (but in any event not before the expiration of any longer period required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; ), and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period until such time as all of such securities have been disposed of in accordance with the intended method or methods of distribution disposition by the seller or sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such noticenotice pursuant to Section 1.6(b), the applicable time periods regarding the maintenance of such period mentioned in this Section 1.7(b) during which a Registration Statement is to remain effective shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(61.6(b) hereof to and including the date when each seller of a Registrable Securities Security covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k1.7(e);
(c) hereof furnish to each seller of Registrable Securities, prior to filing a Registration Statement, such number of copies of such Registration Statement, each amendment and supplement thereto, the prospectus included in such Registration Statement (including each preliminary prospectus) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(d) register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as any seller reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such seller to consummate the disposition in such jurisdictions of the Registrable Securities owned by such seller and to keep each such registration or qualification (or exemption therefrom) effective during the period which the Registration Statement is required to be kept effective (provided, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (ii) subject itself to taxation in any such jurisdiction or (iii) consent to general service of process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, at any time when a prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event (a "CHANGING EVENT") as a result of which, the prospectus included in such Registration Statement contains an untrue statement of a material fact or omits any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made, and, at the request of any such seller, the Company will as soon as possible prepare and furnish to such seller (a "CORRECTION EVENT") a reasonable number of copies of a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading in the light of the circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are then listed and, if not so listed, to be listed on The Nasdaq Stock Market or the AdviceNasdaq SmallCap trading system or the Nasdaq OTC Bulletin Board;
(g) provide a transfer agent and registrar for all such Registrable Securities not later than the effective date of such Registration Statement;
(h) enter into such customary agreements (including underwriting agreements in customary form with any underwriter, if any is selected by the Company) and take all such other actions as the holders of a majority of the Registrable Securities being sold or the underwriters, if any, reasonably request in order to expedite or facilitate the disposition of such Registrable Securities, including causing its officers to participate in "road shows" and other information meetings organized by an underwriter, if any, provided that any underwriter shall have been selected by the Company;
(i) make available for inspection by any seller of Registrable Securities, any underwriter participating in any disposition 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 cause the Company's 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;
(j) before filing a Registration Statement or prospectus or any amendments or supplements thereto, the Company shall provide counsel selected by the Designated Holders holding a majority of the Registrable Securities being registered in such registration ("HOLDERS' COUNSEL") and any other Inspector (as defined below) with an adequate and appropriate opportunity to review and comment on such Registration Statement and each prospectus included therein (and each amendment or supplement thereto) to be filed with the SEC, subject to such documents being under the Company's control, and the Company shall notify the Holders' Counsel and each seller of Registrable Securities of any stop order issued or threatened by the SEC;
(k) otherwise comply with all applicable rules and regulations of the SEC, and make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve months beginning with the first day of the Company's first full calendar quarter after the effective date of the Registration Statement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; (l) in the event of the issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related prospectus or suspending the qualification of any securities included in such Registration Statement for sale in any jurisdiction, the Company will use its reasonable best efforts promptly to obtain the withdrawal of such order;
(m) if required by the Securities Act, the rules promulgated thereunder, or the SEC, or in the discretion of the Company, obtain one or more comfort letters, 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 Company's independent public accountants in customary form and covering such matters of the type customarily covered by comfort letters;
(n) provide any legal opinions of Company counsel required by the Securities Act, the rules promulgated thereunder or the SEC, in accordance with such requirements;
(o) subject to execution and delivery of mutually satisfactory confidentiality agreements, make available at reasonable times for inspection by any seller of Registrable Securities, any managing underwriter participating in any disposition of such Registrable Securities pursuant to a Registration Statement, Holders' Counsel and any attorney, accountant or other agent retained by any managing underwriter (each, an "INSPECTOR" and collectively, the "INSPECTORS"), during normal business hours of Company at Company's corporate office and without unreasonable disruption of Company's business or unreasonable expense to Company and solely for the purpose of due diligence with respect to the registration statement, non-confidential, legally disclosable, financial and other records and pertinent corporate documents of the Company and its subsidiaries (collectively, the "RECORDS") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's and its subsidiaries' officers, directors and employees, and the independent public accountants of the Company, to make available for inspection, at such parties' offices during their respective normal business hours and without unreasonable disruption of their business or unreasonable expense to Company and solely for the purpose of due diligence with respect to a registration statement covering Registrable Securities pursuant to this Agreement all information reasonably requested by any such Inspector in connection with such Registration Statement;
(p) subject to execution and delivery of mutually satisfactory confidentiality agreements, keep Holders' Counsel advised as to the initiation and progress of any registration hereunder including, but not limited to, providing Holders' Counsel with all correspondence with the SEC;
(q) cooperate with each seller of Registrable Securities and each underwriter participating in the disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with the NASD; and
(r) take all other steps reasonably necessary to affect the registration of the Registrable Securities contemplated hereby.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereofShelf Registration Statement, the Company will use its reasonable best efforts to effect such registration to permit the sale of such Registrable the Transfer Restricted Securities being sold in accordance with the intended method or methods of distribution or disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) on or prior to the date 60 days after the Closing Date, prepare and file with the SEC, as soon as practicable, Commission a Shelf Registration Statement relating to the registration on Form S-3 (or, if Form S-3 is not available, on Form S-1 or Registration Statements on any appropriate form under the Securities Act, which form shall be available Form S-2) for the sale of the Registrable Transfer Restricted Securities in accordance with the intended method or methods of distribution thereof and shall include or incorporate all required financial statements required by the SEC statements, reports, schedules, exhibits and other documents; cause to be filed therewithmade, or otherwise cooperate and assist in any filings required to be made with the NASD, NASD and use its reasonable best efforts to cause such Shelf Registration Statement to become effectiveeffective and approved on or prior to the Effectiveness Target Date by such governmental agencies or authorities as may be necessary to enable the selling Holders to consummate the disposition of such Transfer Restricted Securities; provided that before filing a Shelf Registration Statement or Prospectus any Prospectus, or any amendments or supplements thereto, including documents incorporated by reference after the initial filing of the Shelf Registration Statement, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement Holders and the underwriters, if any, copies of all such documents proposed to be filed, which documents will shall be subject to the reasonable review of such holders and underwritersHolders, and the Company will shall not file any Shelf Registration Statement or amendment thereto or any Prospectus or any supplement thereto (including such documents incorporated by reference) to which the holders of a majority Holders of the Registrable Transfer Restricted Securities covered by such Shelf Registration Statement or the underwriters, if any, shall reasonably objectobject in writing within four business days after the receipt thereof on the grounds that such Shelf Registration Statement, Prospectus, amendment or supplement does not (x) comply in all material respects with the requirements of the Act or the rules and regulations thereunder or (y) fairly or accurately describe any description or other information pertaining to any of such Holders or concerning the plan of distribution contemplated by such Holders;
(b) prepare and file with the SEC Commission such amendments and post-effective amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been soldset forth in Section 3(a) hereof; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable provisions of Rule 424 under the Act in a timely manner; and comply with the provisions of the Securities Act with respect to the disposition of all 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; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify advise the selling holders of Registrable Securities and the managing underwritersHolders promptly and, if any, promptly, and (if requested by any such Person) Persons, to confirm such advice in writing, (1i) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Shelf Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective, (2ii) of any request by the SEC Commission for amendments to the Shelf Registration Statement or amendments or supplements to the Registration Statement or the Prospectus or for additional informationinformation relating thereto, (3iii) 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 proceedings proceeding for that purposeany of the preceding purposes, (4iv) if at any time the representations and warranties of the Company contemplated by paragraph (ol)(i) below cease to be true and correct, and (5v) of the receipt by the Company existence 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 fact and (6) of the happening of any event which that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus Prospectus, any amendment or supplement thereto, or any document incorporated therein by reference untrue therein untrue, or which that requires the making of any additions to or changes in the Shelf Registration StatementStatement or the Prospectus, the Prospectus any amendment or supplement thereto, or any document incorporated therein by reference therein in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain misleading in the withdrawal light of the circumstances then existing. If at any time the Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement 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 momenttime;
(d) no less than 24 hours prior to the filing of any document that is to be incorporated by reference into the Shelf Registration Statement or the Prospectus (after the initial filing of the Shelf Registration Statement), provide copies of such document to the selling Holders and underwriters, if any, make the Company's representatives available at reasonable times for discussion of such document and include such information in such document prior to the filing thereof as such selling Holders or underwriters may reasonably and timely request;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities Holder and each managing underwriter, if any, without charge, at least one signed copy of the Shelf Registration Statement Statement, as first filed with the Commission, and any post-effective of each amendment thereto, including financial statements and schedules, all documents incorporated therein by reference therein and all exhibits (including those exhibits incorporated therein by reference);
(gf) deliver to each selling holder of Registrable Securities Holder and the underwritersunderwriter, if any, without charge, as many copies of the Prospectus (including each preliminary prospectusProspectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or and any amendment or supplement thereto by each of the selling holders of Registrable Securities Holders and the underwriters, if any, in connection with the public offering and sale of the Registrable Transfer Restricted Securities covered by the Prospectus or any amendment or supplement thereto;
(hg) prior to any public offering of Registrable Transfer Restricted Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its reasonable best efforts to cause the Registrable Transfer Restricted Securities covered by the applicable Shelf 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 or the underwriters, if any, to consummate the disposition of such Registrable SecuritiesTransfer Restricted Securities and otherwise cooperate with the selling Holders and underwriters, if any, and their respective counsel in connection with the registration and qualification of the Transfer Restricted Securities under the securities or Blue Sky laws of such jurisdictions as the selling Holders and underwriters, if any, may reasonably request 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 the Shelf Registration Statement; provided, however, that the Company shall be required neither to register or qualify as a foreign corporation where it is not now so qualified nor to take any action that would subject it to the service of process in suits or to taxation, other than as to matters and transactions relating to the Shelf Registration Statement, in any jurisdiction where it is not now so subject;
(kh) upon in connection with any sale of Transfer Restricted Securities that will result in such securities no longer being Transfer Restricted Securities, cooperate with the occurrence selling Holders to facilitate the timely preparation and delivery of certificates representing Transfer Restricted Securities to be sold and not bearing any restrictive legends; and enable such Transfer Restricted Securities to be in such denominations and registered in such names as the Holders may request at least two business days prior to any sale of Transfer Restricted Securities made by such Holders;
(i) use its reasonable best efforts to cause 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 necessary to enable the seller or sellers thereof to consummate the disposition of such Transfer Restricted Securities, subject to the proviso contained in clause (g) above;
(j) if any fact or event contemplated by clause (v) of paragraph (c)(6c) aboveabove shall exist or have occurred, as promptly as practicable thereafter, prepare a supplement or posteffective post-effective amendment to the Shelf Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(lk) cause provide CUSIP numbers for all Registrable Transfer Restricted Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Shelf Registration Statement, provide a CUSIP number for all Registrable Securities Statement and provide the applicable trustee(s) or transfer agent(s) agent for the Common Stock with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanyTransfer Restricted Securities;
(nl) enter into such agreements (including an underwriting agreement) and take all such other actions consistent with its obligations hereunder in connection therewith and as may be reasonably required in order to expedite or facilitate the disposition of such Registrable the Transfer Restricted Securities pursuant to the Shelf Registration Statement, and in such connection, whether or not an underwriting agreement is entered into and whether or not connection the registration is an underwritten registration Company shall (1i) make such representations and warranties to the holders of such Registrable Securities Holders and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Sale Agreement; (2ii) 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 managing Holders of the Transfer Restricted Securities being sold and underwriters, if any, and the holders of a majority of the Registrable Securities being sold) addressed to each selling holder Holder and the underwritersunderwriter, if any, requesting the same and covering the such matters as are customarily covered in company counsel opinions requested to underwriters in primary underwritten offerings and such other matters as may be reasonably requested by such holders and underwritersofferings; (3iii) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities Holders and the underwriters, if any, requesting the same, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by to underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5iv) the Company shall deliver such documents and certificates as may be reasonably requested by the holders of a majority Holders of the Registrable Transfer Restricted Securities being sold and the managing underwriters, if any, to evidence compliance with clause (ki) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and Company pursuant to the extent required thereunderthis clause (1);
(om) subject to appropriate confidentiality arrangements being entered into, make available at reasonable times for inspection by a representative the Holders of the holders of a majority of the Registrable Securities, any underwriter Transfer Restricted Securities participating in any disposition pursuant to such registrationShelf Registration Statement, any underwriters and any attorney or accountant retained by the sellers such selling Holders or underwriterunderwriters, all financial and other records, pertinent corporate documents and properties of the Company, Company and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representativeHolder, underwriter, attorney or accountant at reasonable times in connection with such registration; provided that any records, information or documents that are designated by Shelf Registration Statement subsequent to the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative orderfiling thereof and prior to its effectiveness;
(pn) otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the SECCommission, and make generally available to its security holders, as soon as reasonably practicable, a consolidated earnings statements satisfying statement (which need not be audited) for the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12twelve-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offeringperiod, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Shelf Registration Statement, which statements shall cover said 12-month periods;
(o) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the Shelf Registration Statement at the earliest possible moment; use its reasonable best efforts (i) to prevent the entry of any stop order affecting the Registration Statement and (ii) to remove any such stop order if entered; and
(qp) promptly prior to the filing of cooperate and assist in any document which is filings required to be incorporated by reference into made with the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably requestNASD. The Company may require each seller of Registrable Securities as to which agrees that it will not include in the registration contemplated by the Shelf Registration Statement any registration is being effected to furnish securities other than the Transfer Restricted Securities. The Company represents and warrants to the Company such information regarding Owner Trustee and Lazard that it will not be required to include under the distribution Shelf Registration Statement any other securities. The Owner Trustee, on behalf of such securities as the Company may from time to time reasonably request in writing. Each holder Beneficiary, Lazard, on behalf of Registrable Securities agrees itself, and both the Owner Trustee and Lazard, on behalf of each subsequent Holder, agree by acquisition of such Registrable Transfer Restricted Securities that, upon receipt of any notice from the Company of the existence of any fact or the happening of any event of the kind described in clause (v) of Section 6(k5(c) hereof, such holder Holder will forthwith discontinue disposition of Registrable Transfer Restricted Securities pursuant to the Shelf Registration Statement until such holderHolder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k5(j) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if . If so directed by the Company, such holder each Holder will, or will request the managing underwriter or underwriters, if any, to deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holderHolder's possession, of the Prospectus covering such Registrable Transfer Restricted Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Trans World Airlines Inc /New/)
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereoffiling of the Registration Statement, the Company will use its best efforts to effect such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereofIssuer shall, and pursuant thereto the Company will as expeditiously as possiblepracticable:
(ai) prepare and file with Before filing the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best efforts to cause such Registration Statement to become effective; provided that before filing a Registration Statement or Prospectus related prospectus or any amendments or supplements thereto, the Company will Issuer shall furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if anycounsel for Pure Fishing, copies of all such documents in the form substantially as proposed to be filed, which documents will be subject filed with the Commission at least two (2) Business Days prior to the reasonable filing for review of such holders and underwriters, and the Company will not file any Registration Statement comment by Pure Fishing or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;its counsel.
(bii) prepare Prepare and file with the SEC Commission such amendments and post-effective amendments supplements to the Registration Statement and the prospectus used in connection with the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act and rules promulgated thereunder with respect to the disposition of all securities covered by such the Registration Statement. If a XX Xxxxxx wishes to make any sales under the Registration Statement during through the applicable period in accordance with means of an underwritten offering, the intended method or methods of distribution by Issuer shall amend the sellers thereof set forth in such Registration Statement or supplement the related prospectus whenever required by the terms of the underwriting agreement. Subject to Rule 415 under the Prospectus; Securities Act, the Company Issuer shall not be deemed to have used its best efforts to keep a amend the Registration Statement effective during or supplement the applicable period if related prospectus so that it voluntarily takes any action that would result will remain current and in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies compliance with the requirements of Section 6(k)the Securities Act throughout the Effective Period, and if applicable;during such period any event or development occurs as a result of which the Registration Statement or related prospectus contains a misstatement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Issuer shall promptly notify each Warrant Holder and XX Xxxxxx, amend the Registration Statement or supplement the related prospectus so that each will thereafter comply with the Securities Act and furnish to each Warrant Holder and XX Xxxxxx such amended or supplemented prospectus, which each such Warrant Holder and XX Xxxxxx shall thereafter use in the Transfer of Warrant Stock covered by the Registration Statement. Pending such amendment or supplement each such Selling Holder shall cease making offers or Transfers of Warrant Stock pursuant to the prior prospectus. In the event that any Warrant Stock included in the Registration Statement remains unsold at the end of the Effective Period, the Issuer may withdraw the Registration Statement or file a post-effective amendment to the Registration Statement for the purpose of removing such Warrant Stock from registered status.
(ciii) notify Furnish to each XX Xxxxxx, without charge, such numbers of copies of the selling holders of Registrable Securities and the managing underwritersRegistration Statement, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement pre-effective or post-effective amendment has been filedthereto, andthe prospectus, including each preliminary prospectus and any amendments or supplements thereto, in each case in conformity with respect the requirements of the Securities Act and the rules thereunder, and such other related documents as each XX Xxxxxx may reasonably request in order to facilitate the disposition of securities owned by it and covered by the Registration Statement.
(iv) Use commercially reasonable efforts (A) to register and qualify the securities covered by the Registration Statement under such other securities or any post-effective amendment, when the same has become effective, blue sky laws of such states or jurisdictions (2including foreign jurisdictions) of any request as shall be reasonably requested by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional informationHolder, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6B) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement Statement, or the lifting of any suspension of the qualification (or exemption from qualification) of the offer and transfer of the Warrant Stock in any jurisdiction, at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering; provided, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be included therein relating to the plan of distribution with respect to such Registrable Securitieshowever, including, without limitation, information with respect to the number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company will Issuer shall not be required in connection therewith or as a condition thereto 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 file a general consent to general service of process in any such jurisdiction where it is not then so subject;states or jurisdictions.
(iv) cooperate In the event that any XX Xxxxxx shall choose to enter into an underwriting agreement or agency agreement with respect to any portion of the selling holders of Registrable Securities and the managing underwriters, if any, to facilitate the timely preparation and delivery of certificates representing Registrable Securities offering to be sold and not bearing any restrictive legends; and enable such Registrable Securities made pursuant to be in such denominations and registered in such names as the managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number enter into and perform the Issuer’s obligations under an underwriting or agency agreement (including indemnification and contribution obligations of underwriters or agents), in usual and customary form, with the managing underwriter or underwriters of or agents for all Registrable Securities such offering. The Issuer shall also cooperate with the Selling Holders and provide the applicable trustee(smanaging underwriter for such offering in the marketing of the Warrant Stock, including making available the Issuer’s officers, accountants, counsel, premises, books and records for such purpose; provided, however that the Issuer shall not be required to incur any out-of-pocket expense (other than out-of-pocket expenses that the relevant XX Xxxxxx has agreed to reimburse) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;pursuant to this Section 8(c)(v).
(nvi) enter into such agreements Promptly notify the Selling Holders of any stop order issued or threatened to be issued by the Commission in connection with the Registration Statement (including an underwriting agreement) and take all such other reasonable actions in connection therewith in order required to expedite or facilitate prevent the disposition entry of such Registrable Securities and in such connection, whether stop order or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1) make such representations and warranties to the holders of such Registrable Securities and the underwriters, remove it if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;entered).
(ovii) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make Make generally available to its the Issuer’s security holdersholders copies of all periodic reports, proxy statements, and other information referred to in Section 8(h) and an earnings statements statement satisfying the provisions of Section 11(a) of the Securities Act, Act no later than 45 90 days after following the end of any 12-month the twelve (12)-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's Issuer’s first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and.
(qviii) promptly prior Make available for inspection by Pure Fishing, any underwriter participating in any offering pursuant to the filing of any document which is to be incorporated by reference into the Registration Statement and the representatives of Pure Fishing and such underwriter, all financial and other information as shall be reasonably requested by them, and provide Pure Fishing, any underwriter participating in such offering and any of their representatives the opportunity to discuss the business affairs of the Issuer with its principal executives and independent public accountants who have certified the audited financial statements included in the Registration Statement, in each case all as necessary to enable them to exercise their due diligence responsibility under the Securities Act; provided, however, that information that the Issuer determines, in good faith, to be confidential and which the Issuer advises any such Person in writing is confidential shall not be disclosed unless such Person signs a confidentiality agreement reasonably satisfactory to the Issuer or the Prospectus related Selling Holder agrees to be responsible for such Person’s breach of confidentiality on terms reasonably satisfactory to the Issuer.
(ix) Provide and cause to be maintained a transfer agent and registrar for all Warrant Stock from and after initial filing a date not later than the effective date of the Registration Statement).
(x) Use commercially reasonable efforts to cause the Warrant Stock covered by the Registration Statement (A) if the Common Stock is then listed on a securities exchange or included for quotation in a recognized trading market, provide copies to continue to be so listed or included for a reasonable period of time after the offering, and (B) to be registered with or approved by such other United States, state or foreign governmental agencies or authorities as may be necessary by virtue of the business and operations of the Issuer to enable the WS Holders to consummate the disposition of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the AdviceWarrant Stock.
Appears in 1 contract
Samples: Warrant Agreement (Jarden Corp)
Registration Procedures. In connection with If and whenever the Company's registration obligations holders of Registrable Securities request that the offer and sale of any Registrable Securities be registered under the Securities Act or any Registrable Securities be distributed in a Shelf Registration pursuant to Section 3 hereofthe provisions of this Agreement, the Company will Parent shall use its best commercially reasonable efforts to effect such registration to permit the offer and sale of such Registrable Securities under the Securities Act in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will Parent shall as expeditiously soon as possiblereasonably practicable and as applicable:
(a) subject to Section 2, prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the covering such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use best its commercially reasonable efforts to cause such Registration Statement to become be declared effective; provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish to the holders of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC Commission such amendments and amendments, post-effective amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus and to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during Registrable Securities subject thereto until the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of date on which all the Registrable Securities covered thereby not being able subject thereto have been sold pursuant to sell such Registrable Securities during that period unless such action is required under applicable lawRegistration Statement, provided that the foregoing shall not apply subject to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k2(a), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriterswithin a reasonable time before filing such Registration Statement, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements thereto with the Commission, furnish to the Registration Statement or the Prospectus or for additional information, (3) of the issuance one counsel selected by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should included in such Registration Statement, Prospectus or amendments or supplements thereto copies of such documents proposed to be included therein relating filed, which documents shall be subject to the plan review, comment and approval of distribution such counsel;
(d) notify each selling holder of Registrable Securities, promptly after Parent receives notice thereof, of the time when such Registration Statement has been declared effective or a supplement to any Prospectus forming a part of such Registration Statement has been filed with respect the Commission;
(e) furnish to each selling holder of Registrable Securities such number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and any supplement thereto (in each case including all exhibits and documents incorporated by reference therein) and such other documents as such seller may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such seller;
(f) use its commercially reasonable efforts to register or qualify such Registrable Securities under such other securities or “blue sky” laws of such jurisdictions as any selling holder reasonably requests and do any and all other acts and things which may be reasonably necessary or advisable to enable such holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by such holders; provided, that Parent shall not be required to qualify generally to do business, subject itself to general taxation or consent to general service of process in any jurisdiction where it would not otherwise be required to do so but for this Section 6(f);
(g) notify each selling holder of such Registrable Securities, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event that would cause the Prospectus included in such Registration Statement to contain an untrue statement of a material fact or omit any fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading, and, at the request of any such holder, Parent shall prepare and file as soon as practicable a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(h) make available for inspection by any selling holder of Registrable Securities, any underwriter participating in any disposition pursuant to such Registration Statement and any attorney, accountant or other agent retained by any such holder or underwriter (collectively, the “Inspectors”), all financial and other records, pertinent corporate documents and properties of Parent, and cause Parent’s officers, directors and employees to supply all information reasonably requested by any such Inspector in connection with such Registration Statement;
(i) provide a transfer agent and registrar (which may be the same entity) for all such Registrable Securities not later than the effective date of such registration;
(j) use its commercially reasonable efforts to cause such Registrable Securities to be listed on each securities exchange on which the Common Stock is then listed;
(k) in connection with an Underwritten Offering, enter into such customary agreements (including underwriting and lock-up agreements in customary form) and take all such other customary actions as the holders of such Registrable Securities or the managing underwriter of such offering reasonably request in order to expedite or facilitate the disposition of such Registrable Securities (including, without limitation, information making appropriate officers of Parent available to participate in “road show” and other customary marketing activities (including one-on-one meetings with respect to the number 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 prospective purchasers 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 amendmentSecurities));
(fl) otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission and make available to its holders an earnings statement (in a form that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 under the Securities Act or any successor rule thereto) no later than 30 days after the end of the 12-month period beginning with the first day of Parent’s first full fiscal quarter after the effective date of such Registration Statement, which earnings statement shall cover said 12-month period, and which requirement will be deemed to be satisfied if Parent timely files complete and accurate information on Forms 10-K, 10-Q and 8-K under the Exchange Act and otherwise complies with Rule 158 under the Securities Act or any successor rule thereto;
(m) in connection with any Underwritten Offering, furnish to each selling holder of Registrable Securities and each managing underwriter, without chargeif any, at least one signed copy with (i) a written legal opinion of Parent’s outside counsel, dated the closing date of the Registration Statement offering, in form and substance as is customarily given in opinions of registrants’ counsel to underwriters in underwritten registered offerings; and (ii) on the date of the applicable Prospectus, on the effective date of any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable Registration Statement and at the closing of the offering, dated the respective dates of delivery thereof, a comfort letter signed by Xxxxxx’s independent certified public accountants in form and substance as is customarily given in accountants’ letters to underwriters in underwritten registered offerings;
(n) without limiting Section 6(f), use its commercially reasonable efforts to cause such Registrable Securities 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 Parent to enable the seller or sellers thereof or the underwriters, if any, holders of such Registrable Securities to consummate the disposition of such Registrable SecuritiesSecurities in accordance with their intended method of distribution thereof;
(ko) upon notify the occurrence holders of Registrable Securities promptly of any event contemplated request by paragraph the Commission for the amending or supplementing of such Registration Statement or Prospectus or for additional information;
(c)(6p) aboveadvise the holders of Registrable Securities, prepare a supplement promptly after it shall receive notice or posteffective amendment to obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the related Prospectus initiation or threatening of any document incorporated proceeding for such purpose and promptly use its commercially reasonable efforts to prevent the issuance of any stop order or to obtain its withdrawal at the earliest possible moment if such stop order should be issued;
(q) permit any holder of Registrable Securities which holder, in its sole and exclusive judgment, might be deemed to be an underwriter or a Controlling Person of Parent, to participate in the preparation of such Registration Statement and to require the insertion therein by reference or file any other required document so thatof language, as thereafter delivered furnished to Parent in writing, which in the purchasers reasonable judgment of such holder and its counsel should be included;
(r) cooperate with the holders of the Registrable SecuritiesSecurities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to such Registration Statement free of any restrictive legends and representing such number of shares of Common Stock and registered in such names as the holders of the Registrable Securities may reasonably request a reasonable period of time prior to sales of Registrable Securities pursuant to such Registration Statement; provided, that Parent may satisfy its obligations hereunder without issuing physical stock certificates through the Prospectus will not contain an untrue statement use of a material fact or omit to state any material fact necessary to make the statements therein not misleadingfacilities of The Depository Trust Company (“DTC”);
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(ms) not later than the effective date of the such Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) agent with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust CompanyDTC; provided, that Parent may satisfy its obligations hereunder without issuing physical stock certificates through the use of the facilities of DTC;
(nt) enter into such agreements (including an underwriting agreement) and take no direct or indirect action prohibited by Regulation M under the Exchange Act; provided, that, to the extent that any prohibition is applicable to Parent, Parent will take all commercially reasonable action to make any such prohibition inapplicable; and
(u) otherwise use its commercially reasonable efforts to take all other actions in connection therewith in order steps necessary to expedite or facilitate effect the disposition registration of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 1 contract
Samples: Registration Rights and Lock Up Agreement (KLX Energy Services Holdings, Inc.)
Registration Procedures. In connection with the Company's registration obligations of the Company pursuant to and in accordance with Section 3 hereofof this Agreement, the Company will use its best efforts to shall effect such registration registrations to permit the sale of such Registrable Securities in accordance with the intended method or methods of distribution disposition thereof, and pursuant thereto the Company will shall as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, Commission a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form Act that shall be available for the sale of the Registrable Securities by a Holder in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASDthereof, and use its best efforts to cause such Registration Statement to become effectiveeffective and remain effective as provided herein; provided PROVIDED, HOWEVER, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, as the case may be, the Company will shall furnish to the holders of the Registrable Securities covered by such Registration Statement Holders and the managing underwriter or underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders Holders and such underwriter or underwriters, if any, and the Company will shall not file any such Registration Statement Statement, or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement Holders, or the managing underwriter or underwriters, if any, shall reasonably objectobject on a timely basis;
(b) prepare and file with the SEC Commission such amendments and post-effective amendments to the Registration Statement required to be filed pursuant to Section 3 of this Agreement as may be necessary to keep the such Registration Statement effective for the applicable period, or such shorter time period which will terminate when all Registrable Securities covered necessitated by such the intended methods of disposition contemplated by the distribution resulting in the filing of the Registration Statement have been soldStatement; cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement Statement, as so amended, or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, Prospectus as so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicablesupplemented;
(c) notify the selling holders of Registrable Securities any Holders and the managing underwriter or underwriters, if any, promptly, and (if requested by any such Personperson) confirm such advice notice in writing, (1i) when the a Prospectus or any Prospectus supplement or post-effective amendment related to such Registrable Securities has been filed, and, with respect to the a Registration Statement or any post-effective amendmentamendment related to such Registrable Securities, when the same has become effective, (2ii) of any request by the SEC Commission for amendments or supplements to the such Registration Statement or the related Prospectus or for additional information, (3iii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement or the initiation of any proceedings for that purpose, (4iv) if at any time the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by paragraph (oSection 5(j) below cease to be true and correct, (5v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose and purpose, (6vi) of the happening of any event which that makes any statement made in the such Registration Statement, the Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or which that requires the making of any changes in the such Registration Statement, the Statement or Prospectus so that such documents will not contain any untrue statement of a material fact or omit to state any document incorporated material fact required to be stated therein by reference in order or necessary to make the statements therein therein, in light of the circumstances under which they were made, not misleading, and (vii) of the reasonable determination of the Company that a post-effective amendment to such Registration Statement would be appropriate;
(d) make every use its reasonable effort efforts to obtain the withdrawal of any order suspending the effectiveness of the a Registration Statement at the earliest possible momentStatement;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offeringany Holders, promptly (i) immediately incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters and the holders of a majority of the Registrable Securities being sold any Holders agree should be included therein relating to the plan of distribution with respect to such Registrable Securitiesand as may be required by applicable law, including, without limitation, information with respect to the number 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 underwrittenii) offering of the Registrable Securities to be sold in such offering; and make all required filings of such Prospectus supplement or such post-effective amendment as soon as notified promptly after the Company has received notification of the matters to be incorporated in such Prospectus supplement or such post-effective amendmentamendment and (iii) supplement or make amendments to such Registration Statement; PROVIDED, HOWEVER, that the Company shall not be required to take any of the actions set forth in this Section 5(e) that are not, in the opinion of counsel for the Company, in compliance with or required by applicable law;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, if any, without charge, at least one signed copy copy, and furnish to the Holders, without charge, at least one conformed copy, of the each Registration Statement related to such Registrable Securities and any post-effective amendment amendments thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including including, if requested, those previously furnished or incorporated by reference);
(g) deliver to each selling holder of Registrable Securities any Holders and the underwriters, if any, without charge, as many copies of the Prospectus or Prospectuses related to such Registrable Securities (including each preliminary prospectus) and as many copies of any amendment or supplement thereto as such Persons they may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, to register or qualify or cooperate with the selling holders of Registrable SecuritiesHolders, the underwriters, if any, and their respective counsel 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 Blue Sky laws of such jurisdictions as any seller such Holders or underwriter reasonably requests in writing and do any and all other acts writing; use its best efforts to keep each such registration or things necessary qualification (or advisable exemption therefrom) effective during the period such Registration Statement is required to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statementbe kept effective; provided PROVIDED, HOWEVER, that the Company will not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to qualified, (ii) take any action which that would subject it to general service of process in any such jurisdiction where it is not then so subject or (ii) take any action that would subject it to the assessment of taxes in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable 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 not misleading;
(l) cause all Registrable Securities covered by the such a Registration Statement to be (i) listed on each securities exchange exchange, if any, on which similar securities issued by the Company are then listed, or (ii) authorized to be quoted on the National Association of Securities Dealers Automated Quotation System if the securities so qualify and if the Company does not then have similar securities listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if anyon any securities exchange;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nj) enter into such agreements (including an underwriting agreementagreement in form, scope and substance as is customary in similar underwritten offerings) and take all such other actions in connection therewith (including those reasonably requested by the managing underwriter or underwriters, if any, or the Holders) in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (2i) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory addressed to the managing underwriters, if any, Holders and the holders each of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwritersofferings; (3ii) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants of the Company addressed to the selling holders Holders and each of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary similar underwritten offerings; and (4iii) if an underwriting agreement is entered into, the same shall set forth in full the contain customary indemnification provisions and procedures of no less favorable than those set forth in Section 8 6 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause and
(k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or so long as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts to keep the Registration effective, comply with all applicable rules and regulations of the SEC, Commission and make generally available to its security holders, earnings holders earning statements satisfying the provisions of Section 11(a) of the Securities Act, Act and Rule 158 thereunder no later than 45 days after the end of any 12-month period (or 90 days, days after the end of any 12-month period if such period is a fiscal year) (1i) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm commitment or are sold in a best efforts underwritten offering, or and (2ii) if not sold to underwriters in such an offering, beginning with commencing on the first month day of the Company's first fiscal quarter commencing of the Company after the effective date of the a Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected Holder to furnish to the Company such information regarding the distribution of such securities Registrable Securities as the Company may from time to time reasonably request in writingwriting and the Company may exclude from such registration the Registrable Securities of any Holder if he fails to furnish such information within a reasonable time after receiving such request. Each holder of Registrable Securities Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k5(c)(ii), (iii), (iv), (v), (vi) or (vii) hereof, such holder will forthwith the Holders shall immediately discontinue disposition of such Registrable Securities covered by such Registration Statement or Prospectus until such holderthe Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k5(b) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the applicable Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in the such Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement period mentioned in Section 5(b) hereof shall be extended by the number of days during the time period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement any Holder shall have received the copies of the supplemented or amended prospectus Prospectus contemplated by Section 6(k5(b) hereof or the Advice.
Appears in 1 contract
Samples: Registration Rights Agreement (Hospitality Worldwide Services Inc)
Registration Procedures. In connection with the Company's case of each registration obligations effected by the Company pursuant to Section 3 hereofthis Agreement, the Company will keep Holder advised in writing as to the initiation of such registration and as to the completion thereof. The Company will:
(a) Prepare and file with the Commission a registration statement and such amendments and supplements as may be necessary and use its best efforts to effect cause such registration statement to permit become and remain effective for at least 30 days or until the sale distribution described in the registration statement has been completed, whichever first occurs; and
(b) Furnish to Holder and to the underwriters of the securities being registered such reasonable number of copies of the registration statement, preliminary prospectus, final prospectus and such other documents as such underwriters may reasonably request in order to facilitate the public offering of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:securities.
(ac) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use Use its best efforts to cause register and qualify the securities covered by such Registration Statement to become effective; registration statement under the securities laws of such jurisdictions as shall be reasonably appropriate for the distribution of the securities covered by the registration statement, provided that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish shall not be required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such jurisdiction, and provided further that (anything in this Agreement to the holders contrary notwithstanding with respect to the bearing of expenses) if any jurisdiction in which the securities shall be qualified shall require that expenses incurred in connection with the qualification of the securities in that jurisdiction be borne by selling shareholders, then such expenses shall be payable by Holder, to the extent required by jurisdiction if Holder does not elect to withdraw from the registration after notice of such requirement.
(d) In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement with terms generally satisfactory to the managing underwriter of such offering. Holder shall also enter into and perform its obligations under such an agreement.
(e) Notify Holder of Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed registration statement at any time when a prospectus relating thereto is required to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and post-effective amendments to the Registration Statement as may be necessary to keep the Registration Statement effective for the applicable period, or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 delivered under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event as a result of which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold agree should be prospectus included therein relating to the plan of distribution with respect to such Registrable Securities, including, without limitation, information with respect to the number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without chargeregistration statement, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwritersthen in effect, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the securities or blue sky laws of such jurisdictions as any seller or underwriter reasonably requests in writing and do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided that the Company 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 in any such jurisdiction where it is not then so subject;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by paragraph (c)(6) above, prepare a supplement or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain includes an untrue statement of a material fact or omit omits to state any a material fact required to be stated therein or necessary to make the statements therein not misleading;misleading in the light of the circumstances then existing.
(lf) cause Cause all such Registrable Securities covered by the Registration Statement registered hereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of listed.
(g) Provide a majority of transfer agent and registrar for all Registrable Securities registered pursuant to such registration statement and a CUSIP number for all such Registrable Securities or the managing underwritersSecurities, if any;
(m) in each case not later than the effective date of the Registration Statementregistration.
(h) Use its best efforts to furnish, provide a CUSIP number for all at the request of Holder requesting registration of Registrable Securities and provide pursuant to this Section 5, on the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of date that such Registrable Securities are delivered to the underwriters for sale, if such securities are being sold through underwriters, (i) an opinion, dated as of such date, of the counsel representing the Company for the purposes of such registration, in form and substance as is provided to the underwriters in such connectionunderwritten public offering, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (1ii) make such representations and warranties to the holders a letter, dated as of such Registrable Securities and the underwritersdate, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing form and substance as confidential shall be kept confidential is provided by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(p) otherwise use its best efforts independent certified public accountants to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, earnings statements satisfying the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period (or 90 days, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering, or (2) if not sold to underwriters in such an underwritten public offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.
Appears in 1 contract
Registration Procedures. In connection with (a) Obligations of the Company's . Whenever registration obligations of Registrable Securities has been requested pursuant to Section 3 hereof3, Section 4 or Section 5 of this Agreement, the Company will shall use its best efforts to effect the registration and sale of such registration to permit Registrable Securities in accordance with the intended method of distribution thereof as quickly as practicable, and in connection with any such request, the Company shall, as expeditiously as possible:
(i) prepare and file with the SEC a Registration Statement on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available for the sale of such Registrable Securities in accordance with the intended method or methods of distribution thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) prepare and file with the SEC, as soon as practicable, a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement to become effective; provided provided, however, that (x) before filing a Registration Statement or Prospectus prospectus or any amendments or supplements thereto, if counsel for the Company will furnish does not make itself available to serve as counsel to the holders of the Registrable Securities covered by such Registration Statement and the underwritersDesignated Holders, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and then the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which shall provide one counsel selected by the holders of Designated Holders holding a majority of the Registrable Securities covered by being registered in such registration ("Holders' Counsel") and any other Inspector with an adequate and appropriate opportunity to participate in the preparation of such Registration Statement and each prospectus included therein (and each amendment or supplement thereto) to be filed with the underwritersSEC, which documents shall be subject to the review of Holders' Counsel, and (y) the Company shall notify the Holders' Counsel, if any, shall reasonably objectand each seller of Registrable Securities of any stop order issued or threatened by the SEC and take all reasonable action required to prevent the entry of such stop order or to remove it if entered;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the such Registration Statement effective for the applicable period, or lesser of (x) 120 days and (y) such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers thereof set forth in such Registration Statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable law, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicableStatement;
(ciii) notify the selling holders as soon as reasonably possible, furnish to each seller of Registrable Securities and the managing underwritersSecurities, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect prior to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the filing a Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making copies of any changes in the such Registration Statement as is proposed to be filed, and thereafter such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits thereto), the Prospectus or any document incorporated therein by reference prospectus included in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the such Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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;
(f) furnish to each selling holder of Registrable Securities and each managing underwriter, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto such other documents as each such Persons seller may reasonably request; request in order to facilitate the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale disposition of the Registrable Securities covered owned by the Prospectus or any amendment or supplement theretosuch seller;
(hiv) prior to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification of such Registrable Securities for offer and sale under the such other securities or "blue sky sky" laws of such jurisdictions as any seller of Registrable Securities may request, and to continue such qualification in effect in such jurisdiction for as long as permissible pursuant to the laws of such jurisdiction, or underwriter reasonably for as long as any such seller requests in writing or until all of such Registrable Securities are sold, whichever is shortest, and do any and all other acts or and things which may be reasonably necessary or advisable to enable any such seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statementsuch seller; provided provided, however, that the Company will shall not be required to (x) qualify generally to do business in any jurisdiction where it is would not then so qualified otherwise be required to qualify but for this Section 8(a)(iv), (y) subject itself to taxation in any such jurisdiction or to take any action which would subject it (z) consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(iv) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered by the applicable 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 seller or sellers thereof or the underwriters, if any, of Registrable Securities to consummate the disposition of such Registrable Securities;
(kvi) notify each seller of Registrable Securities at any time when a prospectus relating thereto is required to be delivered under the Securities Act, upon discovery that, or upon the occurrence happening of any event contemplated by paragraph (c)(6) aboveas a result of which, 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 in light of the circumstances under which they were made, and the Company shall promptly prepare a supplement or posteffective amendment to the Registration Statement such prospectus and furnish to each seller a reasonable number of copies of such supplement to or the related Prospectus or any document incorporated therein by reference or file any other required document amendment of such prospectus as may be necessary so that, as thereafter delivered after delivery to the purchasers of the such Registrable Securities, the Prospectus will 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 misleadingmisleading in light of the circumstances under which they were made;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(nvii) enter into such and perform customary agreements (including an underwriting agreementagreement in customary form with the Approved Underwriter or Company Underwriter, if any, selected as provided in Section 3, Section 4 or Section 5, as the case may be) and take all such other actions in connection therewith as are prudent and reasonably required in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunderSecurities;
(oviii) make available for inspection by a representative any seller of the holders of a majority of the Registrable Securities, any managing underwriter participating in any disposition of such Registrable Securities pursuant to such registrationa Registration Statement, Holders' Counsel, if any, and any attorney attorney, accountant or accountant other agent retained by any such seller or any managing underwriter (each, an "Inspector" and collectively, the sellers or underwriter"Inspectors"), all financial and other records, pertinent corporate documents and properties of the CompanyCompany and its subsidiaries (collectively, the "Records") as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's and its subsidiaries' officers, directors and employees employees, and the independent public accountants of the Company, to supply all information reasonably requested by any such representative, underwriter, attorney or accountant Inspector in connection with such registration; provided Registration Statement. Records that any recordsthe Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors unless (x) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in the Registration Statement, (y) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction or (z) the information or documents that are designated in such Records was known to the Inspectors on a non-confidential basis prior to its disclosure by the Company in writing as confidential shall be kept confidential by such Persons unless or has been made generally available to the public. Each seller of Registrable Securities agrees that it shall, upon learning that disclosure of such recordsRecords is sought in a court of competent jurisdiction, information or documents is required by court or administrative ordergive notice to the Company and allow the Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(pix) if such sale is pursuant to an underwritten offering, use its best efforts to 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 or the managing underwriter reasonably request;
(x) use its best efforts to furnish, at the request of any seller of Registrable Securities on the date such securities are delivered to the underwriters for sale pursuant to such registration or, if such securities are not being sold through underwriters, on the date the Registration Statement with respect to such securities becomes effective, an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, if any, and to the seller making such request, covering such legal matters with respect to the registration in respect of which such opinion is being given as such seller may reasonably request and are customarily included in such opinions;
(xi) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable but no later than fifteen (15) months after the effective date of the Registration Statement, an earnings statements satisfying statement covering a period of twelve (12) months beginning after the effective date of the Registration Statement, in a manner which satisfies the provisions of Section 11(a) of the Securities Act, no later than 45 days after the end of any 12-month period Act and Rule 158 thereunder;
(or 90 days, if xii) cause all such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities to be listed on each securities exchange on which similar securities issued by the Company are sold to underwriters in a firm or best efforts underwritten offeringthen listed, or (2) if not sold to underwriters in such an offering, beginning with provided that the first month of the Company's first fiscal quarter commencing after the effective date of the Registration Statement, which statements shall cover said 12-month periods; andapplicable listing requirements are satisfied;
(qxiii) promptly prior to the filing of any document which is to be incorporated by reference into the Registration Statement or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriterskeep Holders' Counsel, if any, make the Company's representatives available for discussion of such document and make such changes advised in such document prior writing as to the filing thereof as counsel for such selling holders initiation and progress of any registration under Section 3, Section 4 or underwriters may reasonably request. The Company may require Section 5 hereunder;
(xiv) cooperate with each seller of Registrable Securities as to which any registration is being effected to furnish to and each underwriter participating in the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition disposition of such Registrable Securities thatand their respective counsel in connection with any filings required to be made with the National Association of Securities Dealers, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing Inc. (the "AdviceNASD"); and
(xv) by take all other steps necessary to effect the Company that the use registration of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advicehereby.
Appears in 1 contract
Registration Procedures. In connection with the Company's registration obligations pursuant to Section 3 hereof, If and whenever the Company will is required to use its best efforts to effect such or cause the registration to permit the sale of such any Registrable Securities under the Securities Act as provided in accordance with the intended method or methods of distribution thereofthis Agreement, and pursuant thereto the Company will will, as expeditiously as possible:
(ai) prepare and and, in any event within 120 days after the end of the period within which a request for registration may be given to the Company, file with the SEC, as soon as practicable, SEC a Registration Statement or Registration Statements on any appropriate form under the Securities Act, which form shall be available for the sale of the registration statement with respect to such Registrable Securities in accordance with the intended method or methods of distribution thereof and shall include all financial statements required by the SEC to be filed therewith, cooperate and assist in any filings required to be made with the NASD, and use its best efforts to cause such Registration Statement registration statement to become effective; provided provided, however, that before filing a Registration Statement or Prospectus or any amendments or supplements thereto, the Company will furnish may discontinue any registration of its securities which is being effected pursuant to Section 2 hereof at any time prior to the holders effective date of the Registrable Securities covered by such Registration Statement and the underwriters, if any, copies of all such documents proposed to be filed, which documents will be subject to the reasonable review of such holders and underwriters, and the Company will not file any Registration Statement or amendment thereto or any Prospectus or any supplement thereto to which the holders of a majority of the Registrable Securities covered by such Registration Statement or the underwriters, if any, shall reasonably objectregistration statement relating thereto;
(bii) prepare and file with the SEC such amendments and post-effective amendments supplements to such registration statement and the Registration Statement prospectus used in connection therewith as may be necessary to keep the Registration Statement such registration statement effective for the applicable period, a period not in excess of 180 days (or such shorter period which will terminate when all Registrable Securities covered by such Registration Statement have been sold; cause the Prospectus to as may be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 permitted under the Securities Act; ) and to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement registration statement during the applicable such period in accordance with the intended method or methods of distribution disposition by the sellers Seller or Sellers thereof set forth in such Registration Statement registration statement; provided, that before filing a registration statement or supplement to the Prospectus; the Company shall not be deemed to have used its best efforts to keep a Registration Statement effective during the applicable period if it voluntarily takes any action that would result in selling holders of the Registrable Securities covered thereby not being able to sell such Registrable Securities during that period unless such action is required under applicable lawprospectus, provided that the foregoing shall not apply to actions taken by the Company in good faith and for valid business reasons, including without limitation the acquisition or divestiture of assets, so long as the Company promptly thereafter complies with the requirements of Section 6(k), if applicable;
(c) notify the selling holders of Registrable Securities and the managing underwriters, if any, promptly, and (if requested by any such Person) confirm such advice in writing, (1) when the Prospectus or any Prospectus supplement or post-effective amendment has been filed, and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective, (2) of any request by the SEC for amendments or supplements thereto, the Company will furnish to counsel for the Stockholder copies of all documents proposed to be filed, which documents will be subject to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose, (4) if at any time the representations and warranties of the Company contemplated by paragraph (o) below cease to be true and correct, (5) 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 and (6) of the happening of any event which makes any statement made in the Registration Statement, the Prospectus or any document incorporated therein by reference untrue or which requires the making of any changes in the Registration Statement, the Prospectus or any document incorporated therein by reference in order to make the statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of the Registration Statement at the earliest possible moment;
(e) if requested by the managing underwriter or underwriters or a holder of Registrable Securities being sold in connection with an underwritten offering, promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriters and the holders of a majority of the Registrable Securities being sold 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 number 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 review of such Prospectus supplement counsel and no such registration statement or post-effective amendment as soon as notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(f) furnish to each selling holder of Registrable Securities and each managing underwriterprospectus, without charge, at least one signed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(g) deliver to each selling holder of Registrable Securities and the underwriters, if any, without charge, as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; the Company consents to the use of the Prospectus or any amendment or supplement thereto by each of the selling holders of Registrable Securities and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto, shall be filed to which such counsel shall have reasonably objected on the grounds that such registration statement or prospectus, or amendment or supplement (with respect to disclosures or omissions in the case of a registration under Section 3 hereof relating to the Holders of Registrable Securities), does not comply in all material respects with the requirements of the Securities Act or the rules or regulations thereunder and shall have specified the basis for such objection in reasonable detail;
(hiii) prior furnish to any public offering of Registrable Securities, register or qualify or cooperate with the selling holders of Registrable Securities, the underwriters, if any, and their respective counsel in connection with the registration or qualification each Seller of such Registrable Securities for offer such number of copies of such registration statement and sale of each amendment and supplement thereto (in each case including all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and summary prospectus), in conformity with the requirements of the Securities Act, and such other documents as such Seller may reasonably request in order to facilitate the disposition of the Registrable Securities by such Seller;
(iv) use its best efforts to register or qualify such Registrable Securities covered by such registration statement under the such other securities or blue sky laws of such jurisdictions as any seller or underwriter each Seller shall reasonably requests in writing request, and do any and all other acts or and things which may be reasonably necessary or advisable to enable such Seller to consummate the disposition in such jurisdictions of the Registrable Securities covered owned by the Registration Statement; provided such Seller, except that the Company will shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction where where, but for the requirements of this clause (iv), it is would not then be obligated to be so qualified qualified, to subject itself to taxation in any such jurisdiction, or to take any action which would subject it consent to general service of process in any such jurisdiction where it is not then so subjectjurisdiction;
(i) 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 managing underwriters may request at least two business days prior to any sale of Registrable Securities to the underwriters;
(jv) use its best efforts to cause the such Registrable Securities covered by the applicable Registration Statement such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to enable the seller Seller or sellers Sellers thereof or the underwriters, if any, to consummate the disposition of such Registrable Securities;
(kvi) upon the occurrence notify each Seller of any event contemplated such Registrable Securities covered by paragraph such registration statement, at any time when a prospectus relating thereto is required to be delivered under the Securities Act within the appropriate period mentioned in clause (c)(6ii) aboveof this Section 4, of the Company's becoming aware that the prospectus included in such registration statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and at the request of any such Seller, prepare and furnish to such Seller a supplement reasonable number of copies of an amended or posteffective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document supplemental prospectus as may be necessary so that, as thereafter delivered to the purchasers of the such Registrable Securities, the Prospectus will such 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;
(l) cause all Registrable Securities covered by the Registration Statement to be listed on each securities exchange on which similar securities issued by the Company are then listed if requested by the holders of a majority of such Registrable Securities or the managing underwriters, if any;
(m) not later than the effective date of the Registration Statement, provide a CUSIP number for all Registrable Securities and provide the applicable trustee(s) or transfer agent(s) with printed certificates for the Registrable Securities which are in a form eligible for deposit with Depositary Trust Company;
(n) enter into such agreements (including an underwriting agreement) and take all such other actions in connection therewith in order to expedite or facilitate the disposition of such Registrable Securities and in such connection, whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration (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 primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement; (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 managing underwriters, if any, and the holders of a majority 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 underwritten offerings and such other matters as may be reasonably requested by such holders and underwriters; (3) obtain "cold comfort" letters and updates thereof from the Company's independent certified public accountants addressed to the selling holders of Registrable Securities and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters by underwriters in connection with primary underwritten offerings; (4) if an underwriting agreement is entered into, the same shall set forth in full the indemnification provisions and procedures of Section 8 hereof with respect to all parties to be indemnified pursuant to said Section; and (5) the Company shall deliver such documents and certificates as may be requested by the holders of a majority of the Registrable Securities being sold and the managing underwriters, if any, to evidence compliance with clause (k) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company. The above shall be done at each closing under such underwriting or similar agreement or as and to the extent required thereunder;
(o) make available for inspection by a representative of the holders of a majority of the Registrable Securities, any underwriter participating in any disposition pursuant to such registration, and any attorney or accountant retained by the sellers or underwriter, all financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such representative, underwriter, attorney or accountant in connection with such registration; provided that any records, information or documents that are designated by the Company in writing as confidential shall be kept confidential by such Persons unless disclosure of such records, information or documents is required by court or administrative order;
(pvii) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC, and make generally available to its security holders, as soon as reasonably practicable (but not more than 18 months) after the effective date of the registration statement, an earnings statements satisfying statement which shall satisfy the provisions of Section 11(a) of the Securities Act, no later than 45 days after Act and the end of rules and regulations promulgated thereunder;
(viii) use its best efforts to list such Registrable Securities on any 12-month period (or 90 dayssecurities exchange on which the Common Stock is then listed, if such period is a fiscal year) (1) commencing at the end of any fiscal quarter in which Registrable Securities are sold not already so listed and if such listing is then permitted under the rules of such exchange, and to underwriters in provide a firm or best efforts underwritten offering, or (2) if transfer agent and registrar for such Registrable Securities covered by such registration statement not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after later than the effective date of the Registration Statement, which statements shall cover said 12-month periods; andsuch registration statement;
(qix) promptly prior to enter into such customary agreements (including an underwriting agreement in customary form) and take such other actions as the filing Stockholder, the Seller or Sellers of any document which is to be incorporated a majority of the Registrable Securities being sold by reference into the Registration Statement other Holders or the Prospectus (after initial filing of the Registration Statement), provide copies of such document to counsel to the selling holders of Registrable Securities and to the managing underwriters, if any, make the Company's representatives available for discussion of such document and make such changes in such document prior to the filing thereof as counsel for such selling holders or underwriters may reasonably request. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing. Each holder of Registrable Securities agrees by acquisition order to expedite or facilitate the disposition of such Registrable Securities that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(k) hereof, such holder will forthwith discontinue disposition of Registrable Securities until such holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 6(k) hereof, or until it is advised in writing (the "Advice") by the Company that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the Prospectus, and, if so directed by the Company, such holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods regarding the maintenance of such Registration Statement shall be extended by the number of days during the period from and including the date of the giving of such notice pursuant to Section 6(c)(6) hereof to and including the date when each seller of Registrable Securities covered by such Registration Statement shall have received the copies of the supplemented or amended prospectus contemplated by Section 6(k) hereof or the Advice.Securities;
Appears in 1 contract
Samples: Registration Rights Agreement (At&t Capital Corp /De/)
