Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall: (a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit. (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented. (c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event. (d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment. (e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law. (f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission. (g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto. (h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject. (i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement. (j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market. (l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158. (m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement. (n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (LOCAL Corp)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:under this Agreement;
(a) Prepare and file with Each Holder agrees to furnish to the Commission Company a completed questionnaire in the form attached to this Agreement as Annex B (a “Selling Stockholder Questionnaire”) on or a date that is not less than two (2) Trading Days prior to the Filing Deadline, a Registration Statement on Form S-3 (Date or if such form is not available to by the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing end of the Registration Statement or any related Prospectus or any amendment or supplement thereto, fourth (4th) Trading Day following the Company shall (i) furnish to date on which such Holder receives a request for Annex B from the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritCompany.
(i) Prepare The Company shall prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective (subject to any requirement that a post-effective amendment be declared effective by the Commission) as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable SecuritiesSecurities subject to any SEC Guidance that sets forth a limitation on the number of Registrable Securities permitted to be registered on a particular Registration Statement; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statementamendment; and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall as soon as reasonably practicable file, but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.
(d) The Company shall notify the Holders of Registrable Securities to be sold and (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the Special Counsel use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph not including (Ai) any Exchange Act filing or (ii) any supplement or post-effective amendment to a registration statement that is not related to such Holder’s Registrable Securities), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; , and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; , (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; , (iiiiv) 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 , (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation , and (vi) of the occurrence or existence of any pending corporate development with respect to any remedies to which the Holders Company that the Company believes may be entitled under this Agreementmaterial and that, if in the determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus; provided, that in no event shall any such notice contain any information which would constitute material, non-public information regarding the Company or any of the events described in clauses its Subsidiaries.
(ie) through (iv) of Section 3(c)(C) occurs, the The Company shall use its best efforts to respond to and correct the event.
(d) Use its reasonable best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order stopping or suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(ef) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the The Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the XXXXX system (or successor thereto) need not be furnished in physical form.
(g) Promptly deliver Subject to each Holder and the Special Counselterms of this Agreement, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered If requested by a Registration Statement; providedHolder, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any cooperate with such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders 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, to the extent permitted by applicable law and the Share Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(d), as promptly as possiblereasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, the Company shall prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus for a period not to exceed 90 calendar days (which need not be consecutive days) in any 12-month period.
(kj) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects The Company shall comply with all applicable rules and regulations of the Commission in connection with obtaining and make generally available to its security holders earnings statements satisfying maintaining the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end effectiveness of any 3-month period (or 90 days after Registration Statement required to be filed and maintained with the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission under this Agreement.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in natural persons thereof that have voting and dispositive control over the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).shares
Appears in 2 contracts
Samples: Registration Rights Agreement (SurePure, Inc.), Registration Rights Agreement (SurePure, Inc.)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(ai) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three four (34) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement theretothereto (other than any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to the Special Counsel, Holder and Holder Counsel copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to filed and shall reasonably consider any comments thereto from the review of such Special Holder and Holder Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel Holder shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(iii) (w) Prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (iix) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iiiy) respond as promptly as possible, and in no event later than 10 Business Daysreasonably promptly, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders Holder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; provided, however, the Company will not be required to provide copies of any correspondence that would result in the disclosure to the Holder of material and non-public information concerning the Company unless the Holder has executed a confidentiality agreement with the Company; and (ivz) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Holder thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(ciii) Notify the Holders of Registrable Securities to be sold Holder and the Special Holder Counsel as promptly as possible reasonably possible, and (Aif requested by any such Person) when a Prospectus or confirm such notice in writing no later than one Trading Day thereafter, of any Prospectus supplement or post-effective amendment to of the Registration Statement is proposed to be filed following events: (but in no event in the case of this subparagraph (A), less than three (3i) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such any Registration Statement and whenever Statement; (ii) the Commission comments in writing on such any Registration Statement; and Statement (C) with respect in which case the Company shall deliver to the Holder a copy of such comments and of all written responses thereto; provided, however, the Company will not be required to provide copies of any responses that would result in the disclosure to the Holder of material and non-public information concerning the Company unless the Holder has executed a confidentiality agreement with the Company); (iii) any Registration Statement or any post-effective amendment, when the same has become effective amendment is declared effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiv) of any request by the Commission or any other Federal federal or state governmental authority for amendments requests any amendment or supplements supplement to the any Registration Statement or Prospectus or for requests additional informationinformation related thereto; (iiv) of the issuance by the Commission of issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiivi) of the receipt by the Company receives notice 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 threat of any Proceeding for such purpose; and or (ivvii) if the financial statements included or incorporated by reference in the any Registration Statement become ineligible for inclusion or incorporation therein or of the occurrence of any event that makes any statement made in the any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or that requires any revisions revision to the a Registration Statement, Prospectus or other documents document is required so that, in the case of the Registration Statement or the Prospectus, as the case may be, that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through .
(iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its reasonable best efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas soon as practicable.
(ev) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement Furnish or post-effective amendment make available to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Holder Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to exhibits, unless requested in writing by the extent requested by Holder or Holder Counsel), and such Person (including those previously furnished other documents, as the Holder or incorporated by reference) Holder Counsel may reasonably request, promptly after the filing of such documents with the Commission.
(gvi) Promptly deliver to each the Holder and the Special Holder Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and . Subject to Section 11(e), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hvii) (i) Prepare and timely file with each Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) use reasonable best efforts to cause such Registrable Securities to be approved for listing on each Trading Market as soon as practicable thereafter; (iii) provide to the Holder evidence of such listing; and (iv) use reasonable best efforts to maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(viii) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders Holder and the Special Holder 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 laws of such jurisdictions within the United States as any the Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(iix) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreementthis Warrant, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any the Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(jx) Upon the occurrence of any event contemplated by described in clause (vii) of Section 3(c)(C)(iii11(b)(iii) or (iv)of this Warrant, as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Warrant Agreement (Qumu Corp), Warrant Agreement (Qumu Corp)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the Commission on SEC a Prospectus or prior to the Filing Deadline, Prospectus supplement or a Periodic Report in respect of an Existing Shelf Registration Statement or an Initial Shelf Registration Statement on Form S-3 (or if such an appropriate form is not under the Securities Act available to for the Company on another form appropriate for such registration sale of the Registrable Securities by the Requesting Holders thereof in accordance herewith) (which shall include a Plan with the intended method or methods of Distribution substantially in the form of Exhibit A attached hereto)distribution thereof, and use its reasonable best efforts to cause the any such Initial Shelf Registration Statement or Existing Shelf Registration Statement to become effective and remain effective as provided herein; provided, however, provided that not less than three (3) Business Days prior to the before filing of the any Initial Shelf Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto with the SEC, the Company shall (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after filed for their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritreview.
(ib) Prepare and file with the Commission SEC such amendments, including post-effective amendments, amendments and prospectus supplements to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to and available for the applicable resale of the Registrable Securities for the Effectiveness Period and to the extent applicable period specified in Sections 2(c); cause any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplement or a Periodic Report and to make any required filing of a Prospectus supplement, and as so supplemented or amended to be filed supplement pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use its commercially reasonable best efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the such Registration Statement during the applicable period Effectiveness Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as As promptly as possible practicable give notice to the Notice Holders (Ai) when a any Prospectus, Prospectus or any Prospectus supplement supplement, Periodic Report, Registration Statement or post-effective amendment to the a Registration Statement is proposed to be has been filed (but in no event in with the case of this subparagraph (A)SEC and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request request, following the effectiveness of a Registration Statement under the Securities Act by the Commission SEC or any other Federal federal or state governmental authority for amendments or supplements an amendment to the any Registration Statement or Prospectus or for additional information; a supplement to Prospectus, (iiiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings proceedings for that purpose; , (iiiiv) 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, (v) of the occurrence of a Material Event, and (vi) of the determination by the Company that a post-effective amendment to a Registration Statement will be filed with the SEC, which notice, at the discretion of the Company (or as required pursuant to Section 3(g)), may state that it constitutes a Deferral Notice, in which event the provisions of Section 3(g) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or 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 immediate notice to each Notice Holder and the Initial Holders of the withdrawal of any such order.
(e) Deliver to each Notice Holder in connection with any sale of such Notice Holder’s Registrable Securities, as many copies of the Prospectus relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder may reasonably request. The Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(f) Prior to any public offering of the Registrable Securities pursuant to a Registration Statement, use its commercially reasonable best efforts (i) to register or qualify or cooperate with the Notice Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Notice Holder’s Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); and (ivii) if to keep each such registration or qualification (or exemption therefrom) effective during the financial statements included period of the Notice Holder’s offer and sale of their Registrable Securities pursuant to such registration or qualification (or exemption therefrom); provided that the Company will not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.
(g) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of any Registration Statement become ineligible for inclusion therein or the initiation of proceedings with respect to any Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event that makes or the existence of any fact (a “Material Event”) as a result of which any Registration Statement shall contain any untrue statement made of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the Registration Statement light of the circumstances under which they were made, not misleading, or Prospectus (C) the occurrence or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so pending corporate development that, in the reasonable discretion of the Company based on consultation with its counsel, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus for a period of time:
(i) in the case of the clause (B) above, subject to clause (ii) below, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the Prospectusrelated Prospectus or any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such 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, as the case may be, it will and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation , as thereafter delivered to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any purchasers of the Registrable Securities for sale being sold thereunder and, in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder case of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement, subject to the next sentence, use its commercially reasonable best efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders that the availability of the Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such information as Notice Holder’s receipt of copies of a supplemented or amended Prospectus, or until it is advised in writing by the Company reasonably agrees should that the Prospectus may be included therein used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its commercially reasonable best efforts to ensure that the use of the Prospectus may be resumed (iix) make all required filings in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the reasonable judgment of the Company, public disclosure of such Prospectus supplement Material Event would not be prejudicial to or such post-effective amendment contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable after thereafter and (z) in the Company has received notification case of clause (C) above, as soon as in the reasonable discretion of the matters to be incorporated in Company, such Prospectus supplement or post-effective amendment; provided, however, that the suspension is no longer appropriate. The Company shall not be required entitled to take exercise its right under this Section 3(g) to suspend the availability of a Registration Statement or a Prospectus, without incurring or accruing any action obligation to pay Liquidated Damages pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel2(g), violate applicable law.
no more than one (f1) Furnish to each Holder time in any three month period or four (4) times in any twelve month period, and any such period during which the Special Counsel, without charge, at least one conformed copy availability of each the Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to any Prospectus is suspended (the extent requested by such Person (including those previously furnished or incorporated by reference“Deferral Period”) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counselshall, without chargeincurring any obligation to pay Liquidated Damages pursuant to Section 2(g), as many copies of the Prospectus not to exceed 30 days in any three month period or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders 60 days in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto360 day period.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders each Notice Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold or to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable cause such Registrable Securities to be in such denominations and registered in such names as any such Notice Holder may request in writing at least two three (23) Business Days prior to any sale of such Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(ji) Upon the occurrence of Cooperate and assist in any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact filings 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) Cause all Registrable Securities relating to such Registration Statement to be listed on made with the New York Stock Exchange, . Nothing in this Agreement shall be deemed to require the American Stock Exchange Company to facilitate or the Nasdaq Stock Market.
(l) Comply participate in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end any underwritten offering of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed any Notice Holder or, in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of connection with any such Holder who fails (i) underwritten offering, to furnish such information enter into any underwriting agreement or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing provide any auditor’s “comfort letters” or any opinions of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers counsel to any Notice Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementunderwriter.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Registration Rights Agreement (Jefferies Group Inc /De/), Registration Rights Agreement (Leucadia National Corp)
Registration Procedures. In connection with the Company’s registration obligations hereunderof AIMCO pursuant to and in accordance with SECTION 2 hereof (and subject to AIMCO's rights under SECTION 2), AIMCO will use commercially reasonable efforts to effect such registration to permit the Company shallsale of such Registrable Securities in accordance with the Holders' intended method or methods of disposition thereof, and pursuant thereto AIMCO shall as expeditiously as possible:
(a) Prepare prepare and file with the Commission on or prior to the Filing Deadline, SEC a Registration Statement for the sale of the Registrable Securities on Form S-3 (any form for which AIMCO then qualifies or if such form is not available to the Company on another form which counsel for AIMCO shall deem appropriate for such registration in accordance herewith) (which shall include a Plan with such Holders' intended method or methods of Distribution substantially in the form of Exhibit A attached heretodistribution thereof and, subject to SECTION 2(d), and use commercially reasonable efforts to cause the such Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.;
(ib) Prepare prepare and file with the Commission SEC such amendments, amendments (including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; , and (iv) comply in all material respects with such supplements to the provisions of Prospectus, as may be required by the rules, regulations or instructions applicable to the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition specified by the Holders thereof set forth in owning any Registrable Securities covered by such Registration Statement, make generally available earnings statements satisfying the Registration Statement as so amended or in such provisions of Section 11(a) of the Securities Act (provided that AIMCO shall be deemed to have complied with this clause if it has complied with Rule 158 under the Securities Act), and cause the Prospectus as so supplemented.supplemented to be filed pursuant to Rule 424 under the Securities Act;
(c) Notify notify the Holders of owning any Registrable Securities to be sold covered by such Registration Statement promptly and the Special Counsel as promptly as possible (Aif requested) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority SEC for amendments or supplements to the a Registration Statement or related Prospectus or for additional information; information regarding such Holders, (iiiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings proceedings for that purpose; , (iiiiv) of the receipt by the Company AIMCO 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence happening of any event that makes requires the making of any statement made changes in the such Registration Statement or Statement, Prospectus or any document documents incorporated or deemed to be incorporated therein by reference untrue in any material respect or so that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.;
(d) Use its best efforts to avoid the issuance of, or, if issued, use best commercially reasonable efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of a Registration Statement, or the Registration Statement or (ii) lifting of any suspension of the qualification (or exemption from qualification) qualification of any of the Registrable Securities for sale in any jurisdiction, at jurisdiction in the earliest practicable moment.United States;
(e) If requested by any Holder furnish to the Holders disposing of Registrable SecuritiesSecurities covered by such Registration Statement, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel)such Holders and each managing underwriter, violate applicable law.
(f) Furnish to each Holder and the Special Counselif any, without charge, at least one conformed copy of the Registration Statement, as declared effective by the SEC, and of each Registration Statement and post-effective amend- ment thereto, in each amendment theretocase, including financial statements and schedules, schedules and all exhibits and reports incorporated or deemed to the extent requested by such Person (including those previously furnished or be incorporated therein by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder ; and the Special Counseldeliver, without charge, as many such number of copies of the preliminary prospectus, any amended preliminary prospectus, each final Prospectus or Prospectuses (including each form of prospectus) and each any post-effective amendment or supplement thereto thereto, as such Persons Holder may reasonably request; and request in order to facilitate the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale disposition of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.the Registration Statement in conformity with the requirements of the Securities Act;
(hf) Prior prior to any public offering of Registrable Securities, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within in the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions Holders disposing of the Registrable Securities covered by a the Registration StatementStatement shall reasonably request in writing; providedPROVIDED, howeverHOWEVER, that the Company AIMCO shall not in no event be required to qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it is not then at the time so qualified or to execute or file a general consent to service of process in any such jurisdiction where it has not theretofore done so or to take any action that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax taxation in any such jurisdiction where it is not then so subject.;
(ig) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statementexcept during any Delay Period, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iiiSECTION 4(c)(v) or (iv)above, as promptly as possible, prepare file a supplement or amendment, including a post-effective amendment, amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file reference or any other required document so that, as thereafter delivereddelivered to the purchasers of the Registrable Securities being sold thereunder, neither the Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(kh) Cause use commercially reasonable efforts to cause all Registrable Securities relating to such covered by the Registration Statement to be listed on the New York Stock Exchangeeach securities exchange or automated interdealer quotation system, the American Stock Exchange if any, on which similar securities issued by AIMCO are then listed or the Nasdaq Stock Market.quoted;
(li) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (on or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after before the effective date of the Registration Statement, which statement shall conform to provide the requirements transfer agent of Rule 158.AIMCO for the Registrable Securities with printed certificates for the Registrable Securities in a form eligible for deposit with The Depositary Trust Company;
(mj) Request each selling if such offering is an underwritten offering, make available for inspection by any Holder to furnish to the Company information regarding disposing of Registrable Securities included in such Registration Statement, any underwriter of such offering, and any attorney, accountant or other agent retained by any such Holder or underwriter (collectively, the "INSPECTORS"), all financial and other records and other information, pertinent corporate documents and properties of any of AIMCO and its subsidiaries (collectively, the distribution "RECORDS"), as shall be reasonably necessary to enable them to exercise their due diligence responsibility; PROVIDED, HOWEVER, that the Records that AIMCO determines, in good faith, to be confidential shall not be disclosed to any Inspector unless (i) such Inspector signs a confidentiality agreement reasonably satisfactory to AIMCO (which shall permit the disclosure of such Records in such Registration Statement or the related Prospectus if necessary to avoid or correct a material misstatement in or material omission from such Registration Statement or Prospectus), (ii) after consultation with counsel for the applicable Inspectors, the Holders and AIMCO, the disclosure of such Records is necessary to avoid or correct a misstatement or omission in such Registration Statement or (iii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, PROVIDED that each Holder shall, promptly after learning that disclosure of such Records is sought in a court having jurisdiction, give notice to AIMCO and allow AIMCO, at AIMCO's expense, to undertake appropriate action to prevent disclosure of such Records; and
(k) if such offering is an underwritten offering, enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other appropriate and reasonable actions requested by the Holders owning a majority of the Registrable Securities being sold in connection therewith (including those reasonably requested by the managing underwriters) in order to expedite or facilitate the disposition of such Registrable Securities and, in such connection, (i) use its commercially reasonable efforts to obtain opinions of counsel to AIMCO and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the managing underwriters and counsel to the Holders disposing of Registrable Securities), addressed to each Holder selling Registrable Securities covered by such Registration Statement and each of the underwriters as is to the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (ii) use commercially reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of AIMCO (and, if necessary, any other independent certified public accountants of any subsidiary of AIMCO or of any business acquired by AIMCO for which financial statements and financial data are, or are required by law or the Commission to be disclosed be, included in the Registration Statement), addressed to each Holder selling Registrable Securities covered by the Registration Statement (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings, and (iii) if requested and if an underwriting agreement is entered into, provide indemnification provisions and procedures substantially to the Company effect set forth in SECTION 7 hereof with respect to all parties to be indemnified pursuant to said Section. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder. With respect to any Registration under SECTION 2 hereof, AIMCO may exclude from such registration the require each Holder disposing of Registrable Securities of any covered by such Holder who fails (i) Registration to furnish such information or (ii) regarding the Holder and such Holder's intended disposition of Registrable Securities as AIMCO may from time to agree time reasonably request in writing. If any such information with respect to furnish, upon request, such additional information regarding such the Holder as may later be required by law to be disclosed, in each case, is not furnished within a reasonable period of time prior to the filing after receipt of each Registration Statementsuch request, supplemented Prospectus and/or amended Registration StatementAIMCO may exclude such Holder's Registrable Securities from such Registration. If the Registration Statement refers to any Holder by name or otherwise as the holder Upon receipt of any securities notice from AIMCO of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence happening of any event of the kind described in Section 3(c)(iSECTION 4(c)(ii), 3(c)(ii4(c)(iii), 3(c)(iii), 3(c)(iv4(c)(iv) or 3(n)4(c)(v) hereof, such each Holder will shall (i) forthwith discontinue disposition of such any Registrable Securities under the covered by such Registration Statement or Prospectus until such Holder’s receipt of the copies of the supplemented or amended Prospectus and/or amended Registration Statement contemplated by Section 3(j)SECTION 4(g) hereof, or until it such Holder is advised in writing (the “Advice”"ADVICE") by the Company AIMCO that the use of the applicable Prospectus may be resumed, and, in either case, and has received copies of any amended or supplemented Prospectus or any additional or supplemental filings that which are incorporated incorporated, or deemed to be incorporated incorporated, by reference in such Prospectus or Registration Statement.
(nsuch period during which disposition is discontinued being an "INTERRUPTION PERIOD") If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity if requested by AIMCO, deliver to AIMCO (includingat the expense of AIMCO) all copies then in its possession, but not limited to, the acquisition or disposition of assets (other than permanent file copies then in its possession, of the ordinary course Prospectus covering such Registrable Securities at the time of business) receipt of such request. No Holder shall utilize any material other than the applicable current preliminary prospectus or any merger, consolidation, tender offer or other similar transaction) available Prospectus in connection with the offering of Registrable Securities pursuant to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)SECTION 2 hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Apartment Investment & Management Co), Merger Agreement (Apartment Investment & Management Co)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not 3.1 Not less than three (3) Business Days five business days prior to the filing of the each Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall shall, (i) furnish to the Special Counsel, each Holder copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereofgood faith, unless counsel to provided that, the Company determines is notified of such objection in writing that no later than 4 business days after the Holders have been so furnished copies of such objection is without meritdocuments.
3.2 (i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Private Placement Subscription Agreement (Fuqin Fintech LTD), Private Placement Subscription Agreement (Fuqin Fintech LTD)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, furnish via email to those Purchasers or their counsels who have supplied the Company shall (i) furnish to the Special Counsel, with email addresses copies of all such documents proposed to be filed, which documents (other than those any document that is incorporated or deemed to be incorporated by referencereference therein) will be subject to the review of such Special CounselPurchasers (it being acknowledged and agreed that if a Purchaser does not object to or comment on the aforementioned documents within the two Trading Day period, and (ii) at then the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as Purchaser shall be necessary, in deemed to have consented to and approved the reasonable opinion use of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Actdocuments). The Company shall not file reflect in each such document when so filed with the Registration Statement or any Commission such Prospectus or any amendments or supplements thereto to which comments regarding the Holders Purchasers and the plan of a majority of distribution as the Registrable Securities or the Special Counsel shall Purchasers may reasonably object in writing within three (3) Business and promptly propose no later than two Trading Days after their receipt thereof, unless counsel to the Company determines in writing that Purchasers have been so furnished with copies of such objection is without meritdocuments as aforesaid.
(i) Prepare Subject to Section 5.1(d), prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement424; and (iviii) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Purchasers thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented; provided, however, that, subject to applicable requirements, each Purchaser shall be responsible for the delivery of the Prospectus to the Persons to whom such Purchaser sells any of the Shares (including in accordance with Rule 172 under the Securities Act), and each Purchaser agrees to dispose of Registrable Securities in compliance with the plan of distribution described in the Registration Statement and otherwise in compliance with applicable federal and state securities laws.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel Purchasers as promptly as possible reasonably possible, and if requested by the Purchasers, confirm such notice in writing no later than two Trading Days thereafter, of any of the following events: (Ai) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such any Registration Statement; and (Cii) with respect to the any Registration Statement or any post-effective amendment, when the same has become effective amendment is declared effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission of issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiiiv) of the receipt by the Company receives notice 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 threat of any Proceeding for such purpose; and (ivv) if the financial statements included in the any Registration Statement become ineligible for inclusion therein or of therein; and (vi) the occurrence or existence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material pending development with respect or that requires any revisions to the Registration Statement, Prospectus or other documents so Company that the Company believes may be material and that, in the case determination of the Registration Statement or Company, makes it not in the Prospectus, as best interest of the case may be, it will not contain any untrue statement Company to allow continued availability of a material fact or omit Registration Statement, provided that any and all of such information shall remain confidential to state any material fact each Purchaser until such information otherwise becomes public, unless disclosure by a Purchaser is required by law; provided, further, that notwithstanding each Purchaser's agreement to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurskeep such information confidential, the Company shall use its best efforts to respond to and correct the eventPurchasers make no acknowledgement that any such information is material, non-public information.
(d) Use its commercially reasonable best efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas soon as possible.
(e) If requested by any Holder of Registrable Securitiesa Purchaser, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement provide such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselPurchaser, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that the Company shall have no obligation to provide any document pursuant to this clause that is available on the Commission’s XXXXX system.
(gf) Promptly deliver to each Holder and the Special CounselPurchaser, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto to the extent permitted by federal and state securities laws and regulations.
(hg) Prior to any public offering resale of Registrable SecuritiesSecurities by a Purchaser, use its commercially reasonable best efforts to register or qualify or cooperate with the selling Holders and the Special Counsel Purchasers 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 Holder Purchaser requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during for so long as required, but not to exceed the duration of the Effectiveness Period Period, and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required obligated to file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then otherwise so subject.
(ih) Cooperate with the Holders Purchasers 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, to the extent permitted by applicable law this Agreement and the Purchase Agreementunder law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Purchasers may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementreasonably request.
(ji) Upon the occurrence of any event contemplated by described in Section 3(c)(C)(iii) or (iv5.2(c)(iii)-(vi), as promptly as possiblereasonably practicable, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kj) Cause all It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities relating of any particular Purchaser that such Purchaser furnish to the Company a completed Selling Stockholder Questionnaire in the form proffered by the Company (the “Selling Stockholder Questionnaire”) and such Registration Statement to be listed on the New York Stock Exchangeother information regarding itself, the American Registrable Securities and other shares of Common Stock Exchange or held by it and the Nasdaq Stock Marketintended method of disposition of the Registrable Securities held by it (if different from the Plan of Distribution set forth on Exhibit E hereto) as shall be reasonably required to effect the registration of such Registrable Securities and shall complete and execute such documents in connection with such registration as the Company may reasonably request, except in the case of any such information referred to in this paragraph, to the extent the failure to provide such information does not materially affect the Company’s ability to comply with such obligations.
(lk) Comply in all material respects The Company shall comply with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of under the Securities Act and the Exchange Act, including, without limitation, Rule 158 not later than 45 days after 172 under the end of Securities Act, file any 3-month period (final Prospectus, including any supplement or 90 days after amendment thereof, with the end of Commission pursuant to Rule 424 under the Securities Act, promptly inform the Purchasers in writing if, at any 12-month period if such period is a fiscal year) commencing on time during the first day of the first fiscal quarter of Effectiveness Period, the Company after does not satisfy the effective date conditions specified in Rule 172 and, as a result thereof, the Purchasers are required to make available a Prospectus in connection with any disposition of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities and take such other actions as is required by law or may be reasonably necessary to facilitate the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration of the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementhereunder.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Enphase Energy, Inc.), Securities Purchase Agreement (Enphase Energy, Inc.)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(ai) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three four (34) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement theretothereto (other than any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to the Special Counsel, Holder and Holder Counsel copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to filed and shall reasonably consider any comments thereto from the review of such Special Holder and Holder Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel Holder shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(iii) (w) Prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (iix) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iiiy) respond as promptly as possible, and in no event later than 10 Business Daysreasonably promptly, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders Holder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; provided, however, the Company will not be required to provide copies of any correspondence that would result in the disclosure to the Holder of material and non-public information concerning the Company unless the Holder has executed a confidentiality agreement with the Company; and (ivz) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Holder thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(ciii) Notify the Holders of Registrable Securities to be sold Holder and the Special Holder Counsel as promptly as possible reasonably possible, and (Aif requested by any such Person) when a Prospectus or confirm such notice in writing no later than one Trading Day thereafter, of any Prospectus supplement or post-effective amendment to of the Registration Statement is proposed to be filed following events: (but in no event in the case of this subparagraph (A), less than three (3i) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such any Registration Statement and whenever Statement; (ii) the Commission comments in writing on such any Registration Statement; and Statement (C) with respect in which case the Company shall deliver to the Holder a copy of such comments and of all written responses thereto; provided, however, the Company will not be required to provide copies of any responses that would result in the disclosure to the Holder of material and non-public information concerning the Company unless the Holder has executed a confidentiality agreement with the Company); (iii) any Registration Statement or any post-effective amendment, when the same has become effective amendment is declared effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiv) of any request by the Commission or any other Federal federal or state governmental authority for amendments requests any amendment or supplements supplement to the any Registration Statement or Prospectus or for requests additional informationinformation related thereto; (iiv) of the issuance by the Commission of issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiivi) of the receipt by the Company receives notice 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 threat of any Proceeding for such purpose; and or (ivvii) if the financial statements included or incorporated by reference in the any Registration Statement become ineligible for inclusion or incorporation therein or of the occurrence of any event that makes any statement made in the any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or that requires any revisions revision to the a Registration Statement, Prospectus or other documents document is required so that, in the case of the Registration Statement or the Prospectus, as the case may be, that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through .
(iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its reasonable best efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas soon as practicable.
(ev) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement Furnish or post-effective amendment make available to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Holder Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and (but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to exhibits, unless requested in writing by the extent requested by Holder or Holder Counsel), and such Person (including those previously furnished other documents, as the Holder or incorporated by reference) Holder Counsel may reasonably request, promptly after the filing of such documents with the Commission.
(gvi) Promptly deliver to each the Holder and the Special Holder Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and . Subject to Section 11(e), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hi) Prepare and timely file with each Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) use reasonable best efforts to cause such Registrable Securities to be approved for listing on each Trading Market as soon as practicable thereafter; (iii) provide to the Holder evidence of such listing; and (iv) use reasonable best efforts to maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(viii) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders Holder and the Special Holder 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 laws of such jurisdictions within the United States as any the Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(iix) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreementthis Warrant, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any the Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(jx) Upon the occurrence of any event contemplated by described in clause (vii) of Section 3(c)(C)(iii11(b)(iii) or (iv)of this Warrant, as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Warrant Agreement (Numerex Corp /Pa/), Warrant Agreement (Qumu Corp)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Special Counsel, Holders owning Registrable Securities registered under such Registration Statement copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the any such Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel registered thereunder shall reasonably object in good faith, provided that the Company is notified of such objection in writing within three (3) Business no later than five Trading Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritHolders have been so furnished copies of such documents.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and a Prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the applicable Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the such Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the such Registration Statement; and (iv) comply in all material respects during the applicable Effectiveness Period with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the such Registration Statement during the applicable period in accordance with the Holders’ intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Ai)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such a Registration Statement and whenever the Commission comments in writing on such a Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of a Registration Statement for amendments or supplements to the such Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the such Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in of which the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case Company has knowledge as a result of the Registration Statement or the which a Prospectus, as the case may bethen in effect, it will not contain contains any 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, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas promptly as reasonably practicable.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each Registration Statement registering Registrable Securities held by such Holder and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested in writing by such Person, and all exhibits to the extent requested by such Person in writing (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and request in connection with resales by the Holder of Registrable Securities. Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(hg) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the applicable Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate If requested in writing by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the applicable Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the applicable Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the such Registration Statement nor such the Prospectus included therein will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (v) of Section 3(c) above to suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its commercially reasonable efforts to ensure that the use of a Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and the applicable Prospectus, subject to the payment of liquidated damages pursuant to Section 2(b), for a period not to exceed 60 Trading Days (which need not be consecutive days) in any 12 month period.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder Holder, upon three Trading Days’ notice, to furnish to the Company information regarding a certified statement as to, among other things, the number of shares of Common Stock beneficially owned by such Holder and the distribution of person that has voting and dispositive control over such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementShares.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Registration Rights Agreement (Verticalnet Inc), Registration Rights Agreement (Verticalnet Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Special Counsel, any Holder of over $250,000 Subscription Amount copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in good faith, provided that the Company is notified of such objection in writing within three (3) Business no later than 5 Trading Days after their receipt thereof, unless counsel to the Company determines in writing that Holders have been so furnished copies of such objection is without meritdocuments.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplementedStatement.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible and (Aif requested by any such Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such the Registration Statement and whenever the Commission comments in writing on such the Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional informationinformation related thereto; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and request in connection with resales by the Holder of Registrable Securities. Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(hg) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration Registration Statement or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective posteffective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (v) of Section 3(c) above to suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus, subject to the payment of liquidated damages pursuant to Section 2(b), for a period not to exceed 90 days (which need not be consecutive days) in any 12 month period.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is and, if required by law or the Commission to be disclosed in Commission, the Registration Statement, person thereof that has voting and dispositive control over the Shares. During any periods that the Company may exclude from such is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities of solely because any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities three Trading Days of the Company’s request, then any liquidated damages that are accruing at such Holder time shall have the right to require (if be tolled and any Event that may otherwise occur solely because of such reference to delay shall be suspended, until such Holder by name or otherwise information is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement delivered to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementCompany.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Registration Rights Agreement (Imageware Systems Inc), Registration Rights Agreement (Imageware Systems Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing DeadlineDate, a Registration Statement on Form S-3 (or if such form the Company is not available then eligible to register for resale the Company Registrable Securities on Form S-3 such Registration Statement shall be on another appropriate form appropriate for such registration in accordance herewithwith the Securities Act and the rules and regulations promulgated thereunder) in accordance with the method or methods of distribution thereof as described on Annex A hereto (which shall include a Plan except if otherwise directed by all of Distribution substantially in the form of Exhibit A attached heretoHolders), and use reasonable best efforts to cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(ib) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective (subject to Section 3.1(m)) as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.. The Company shall (A) permit Legal Counsel (as defined below) to review and comment upon (i) a Registration Statement at least five (5) Business Days prior to its initial filing with the Commission and (ii) all amendments and supplements to all Registration Statements (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, 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 in good faith in writing. The Company shall furnish to Legal Counsel, without charge, copies of any correspondence from the Commission or the staff of the Commission to the Company or its representatives relating to any Registration Statement.
(c) Notify At the time the Commission declares the Registration Statement effective, each Holder shall be named as a selling stockholder in the Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of Registrable Securities included in the Registration Statement in accordance with applicable law, subject to the terms and conditions hereof. From and after the date the Registration Statement is declared effective, any Holder not named as a selling stockholder in the Registration Statement at the time of effectiveness may request that the Company amend or supplement the Registration Statement to include such Holder as a selling stockholder, and the Company shall, as promptly as practicable and in any event upon the later of (x) ten (10) Business Days after such date or (y) ten (10) Business Days after the expiration of any Deferral Period (as defined in Section 3.1(m)) that is either in effect or put into effect within ten (10) Business Days of such date:
(i) if required by applicable law, prepare and file with the Commission a post-effective amendment to the Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file with the Commission any other required document so that the Holder is named as a selling stockholder in the Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of such Holder’s Registrable Securities included in the Shelf Registration Statement in accordance with applicable law and, if the Company shall file a post-effective amendment to the Registration Statement, use its reasonable best efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is practicable, but in any event by the date that is sixty (60) days after the date such post-effective amendment is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed pursuant to Section 3.1(c)(i); and
(iii) notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 3.1(c)(i);
(d) Promptly notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (Ai)(A) when a Registration Statement, a Prospectus or any Prospectus supplement or pre- or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; , and if requested by such Holders, furnish to them a copy of such comments and the Company’s responses thereto and (C) with respect to the Registration Statement or any post-post- effective amendmentamendment filed by the Company, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional informationinformation of the Company; (iiiii) of the issuance by the Commission 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; (iiiiv) 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 of the Company for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the such Registration Statement, Prospectus or other documents so that, in the case of the such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(de) Use its reasonable best efforts to avoid the issuance of, orand, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any U.S. jurisdiction, at the earliest practicable moment..
(ef) If requested by any Holder the Holders of a majority of the Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-post- effective amendment to the Registration Statement such information as the Company such Holders reasonably agrees should request to be included therein unless the inclusion of such information would reasonably be expected to expose the Company to liability under federal and state securities laws and regulations 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(fg) Furnish to each Holder and the Special CounselHolder, without chargecharge and upon request, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits and, to the extent requested by such Person Person, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission., provided, that the Company shall have no obligation to provide any document pursuant to this clause that is available on the Commission’s XXXXX system.
(gh) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many not more than five (5) copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably requestthereto; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior thereto to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders extent permitted by federal and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer state securities laws and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.regulations.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities of the Company to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3.1(d)(v), as promptly as possible, practicable prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading..
(k) Cause Use reasonable best efforts to cause all Registrable Securities relating to such the Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market., LLC or any subsequent securities exchange, quotation system or market, if any, on which similar securities issued by the Company are then listed or traded.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the The Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request may require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or within fifteen (ii15) to agree to furnish, upon days after receiving such request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(nm) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statementdisclose, then the Company may postpone or suspend filing or effectiveness of a registration statement Registration Statement for a period (a “Deferral Period”) not to exceed 30 forty-five (45) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n3.1(m) for more than 60 sixty (60) days in the aggregate during any 12 consecutive 12-month period period; provided, however, that no such postponement or suspension by the Company shall be permitted for more than one forty-five (each45) day period, a arising out of the same set of facts, circumstances or transactions.
(n) The Company shall use reasonable best efforts to register or qualify, or cooperate with the Holders of the Registrable Securities included in the Registration Statement in connection with the registration or qualification of, the resale of the Registrable Securities under applicable securities or “Blackout Period”).blue sky” laws of such states of the United States as any such Holder requests in writing and to do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process or to taxation in any jurisdiction to which it is not then so subject.
Appears in 2 contracts
Samples: Registration Rights Agreement (Alimera Sciences Inc), Registration Rights Agreement (Alimera Sciences Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing DeadlineDate, (including by the amendment or supplement of an existing automatic shelf registration statement) a Registration Statement on Form S-3 (or if such form the Company is not available then eligible to register for resale the Company Registrable Securities on Form S-3 such Registration Statement shall be on another appropriate form appropriate for such registration in accordance herewithwith the Securities Act and the rules and regulations promulgated thereunder) in accordance with the method or methods of distribution thereof as described on Annex A hereto (which shall include a Plan except if otherwise directed by all of Distribution substantially in the form of Exhibit A attached hereto)Holders) , and use reasonable best efforts to cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(ib) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective (subject to Section 3.1(m)) as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify At the time the Commission declares the Registration Statement effective or at the time an ASR Pro Supp is filed, as applicable, each Holder shall be named as a selling stockholder in the Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of Registrable Securities included in the Registration Statement in accordance with applicable law, subject to the terms and conditions hereof. From and after the date the Registration Statement is declared effective, any Holder not named as a selling stockholder in the Registration Statement at the time of effectiveness or ASR Pro Supp at the time it is filed, as applicable, may request that the Company amend or supplement the Registration Statement or Prospectus, as applicable to include such Holder as a selling stockholder, and the Company shall, as promptly as practicable and in any event upon the later of (x) ten (10) Business Days after such date or (y) ten (10) Business Days after the expiration of any Deferral Period (as defined in Section 3.1(m)) that is either in effect or put into effect within ten (10) Business Days of such date:
(i) if required by applicable law, prepare and file with the Commission a post-effective amendment to the Registration Statement or prepare and, if required by applicable law, file a supplement to the related Prospectus or a supplement or amendment to any document incorporated therein by reference or file with the Commission any other required document so that the Holder is named as a selling stockholder in the Registration Statement and the related Prospectus in such a manner as to permit such Holder to deliver such Prospectus to purchasers of such Holder’s Registrable Securities included in the Shelf Registration Statement in accordance with applicable law and, if the Company shall file a post-effective amendment to the Registration Statement, use its reasonable best efforts to cause such post-effective amendment to be declared effective under the Securities Act as promptly as is practicable, but in any event by the date that is sixty (60) days after the date such post-effective amendment is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed pursuant to Section 3.1(c)(i); and
(iii) notify such Holder as promptly as practicable after the effectiveness under the Securities Act of any post-effective amendment filed pursuant to Section 3.1(c)(i);
(d) Promptly notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (Ai)(A) when a Registration Statement, a Prospectus or any Prospectus supplement or pre- or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; , and if requested by such Holders, furnish to them a copy of such comments and the Company’s responses thereto and (C) with respect to the Registration Statement or any post-effective amendmentamendment filed by the Company, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional informationinformation of the Company; (iiiii) of the issuance by the Commission 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; (iiiiv) 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 of the Company for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the such Registration Statement, Prospectus or other documents so that, in the case of the such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(de) Use its reasonable best efforts to avoid the issuance of, orand, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any U.S. jurisdiction, at the earliest practicable moment.
(ef) If requested by any Holder the Holders of a majority of the Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company such Holders reasonably agrees should request to be included therein unless the inclusion of such information would reasonably be expected to expose the Company to liability under federal and state securities laws and regulations 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(fg) Furnish to each Holder and the Special CounselHolder, without chargecharge and upon request, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits and, to the extent requested by such Person Person, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission, provided, that the Company shall have no obligation to provide any document pursuant to this clause that is available on the Commission’s XXXXX system.
(gh) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior thereto to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders extent permitted by federal and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer state securities laws and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subjectregulations.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities of the Company to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3.1(d)(v), as promptly as possible, practicable prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause Use reasonable best efforts to cause all Registrable Securities relating to such the Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market, LLC or any subsequent securities exchange, quotation system or market, if any, on which similar securities issued by the Company are then listed or traded.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the The Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request may require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or within fifteen (ii15) to agree to furnish, upon days after receiving such request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(nm) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statementdisclose, then the Company may postpone or suspend filing or effectiveness of a registration statement Registration Statement for a period (a “Deferral Period”) not to exceed 30 sixty (60) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n3.1(m) for more than 60 ninety (90) days in the aggregate during any 12 12-month period; provided, however, that no such postponement or suspension by the Company shall be permitted for more than one sixty (60) day period, arising out of the same set of facts, circumstances or transactions.
(n) The Company shall use reasonable best efforts to register or qualify, or cooperate with the Holders of the Registrable Securities included in the Registration Statement in connection with the registration or qualification of, the resale of the Registrable Securities under applicable securities or “blue sky” laws of such states of the United States as any such Holder requests in writing and to do any and all other acts or things necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities covered by the Registration Statement; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or (ii) take any action that would subject it to general service of process or to taxation in any jurisdiction to which it is not then so subject.
(o) The Company will comply with all rules and regulations of the Commission to the extent and so long as they are applicable to the Registration and will make generally available to its security holders (or otherwise provide in accordance with Section 11(a) of the Securities Act) an earnings statement (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder, no later than 45 days after the end of a 12-month period (eachor 90 days, if such period is a “Blackout Period”)fiscal year) beginning with the Company’s first fiscal quarter commencing after the effective date of the Registration Statement.
Appears in 2 contracts
Samples: Registration Rights Agreement (Ziopharm Oncology Inc), Registration Rights Agreement (Ziopharm Oncology Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the reasonable time before filing of the any Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto with the SEC, the Company shall (i) furnish to counsel to the Special Counsel, Initial Purchasers copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject filed and use reasonable efforts to reflect in each such document when so filed with the SEC such comments as counsel to the review of such Special Counsel, and Initial Purchasers reasonably shall propose within five (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (35) Business Days after their receipt thereof, unless counsel of the delivery of such copies to the Company determines in writing that such objection is without meritInitial Purchasers.
(ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to for the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included period specified in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities2(a); (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use its reasonable efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the such Registration Statement during the applicable period Effectiveness Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to counsel to the Notice Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible Initial Purchasers (Ai) when a any Prospectus, Prospectus or any Prospectus supplement supplement, Registration Statement or post-effective amendment to the a Registration Statement is proposed to be has been filed (but in no event in with the case of this subparagraph (A)SEC and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the Commission SEC or any other Federal federal or state governmental authority for amendments or supplements to the any Registration Statement or related Prospectus or for additional information; , (iiiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings proceedings for that purpose; , (iiiiv) 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 , (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event (but not the nature of or details concerning) a Material Event and (vi) of the determination by the Company that makes any statement made in the a post-effective amendment to a Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or Prospectus or any document incorporated or deemed as required pursuant to be incorporated therein by reference untrue in any material respect or Section 3(i)), state that requires any revisions to the Registration Statement, Prospectus or other documents so thatit constitutes a Deferral Notice, in which event the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) provisions of Section 3(c)(C3(i) occurs, the Company shall use its best efforts to respond to and correct the eventapply.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best reasonable efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of the a Registration Statement or (ii) the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdictionjurisdiction in which they have been qualified for sale, in either case at the earliest practicable possible moment.
(e) If reasonably requested by any Holder of Registrable SecuritiesInitial Purchaser or any Notice Holder, (i) as promptly as practicable incorporate in a Prospectus supplement or post-effective amendment to the a Registration Statement such information as the Company reasonably agrees should be included therein and (ii) make all required filings of such Prospectus supplement Initial Purchaser or such post-effective amendment as soon as practicable after Notice Holder shall, on the Company has received notification basis of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the a written opinion of nationally-recognized counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition experienced in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).matters,
Appears in 2 contracts
Samples: Registration Rights Agreement (Atmel Corp), Registration Rights Agreement (Atmel Corp)
Registration Procedures. In connection with the Company’s Promptly after Grantee's request for registration obligations hereunder, the Company Diana shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)Statement, and use its reasonable best efforts to cause the such Registration Statement to become effective and remain effective all as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, set forth in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.paragraph 1;
(ib) Prepare and file with the Commission such amendments, including post-effective amendments, amendments to such Registration Statement and supplements to the Registration Statement prospectus contained therein as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement effective for reasons other than such period as may be reasonably necessary to effect the failure sale of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.securities;
(c) Notify [Reserved];
(d) Use its best efforts to register or qualify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the securities covered by such Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date under such state securities or blue sky laws of such filing); jurisdictions as Grantee may reasonably request in writing except that Diana shall not xxx any purpose be required to execute a general consent to service or process or to qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified;
(Be) Notify Grantee promptly after it shall receive notice thereof, of the time when the Commission notifies the Company whether there will be such Registration Statement has become effective or a “review” supplement to any prospectus forming a part of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and has been filed;
(Cf) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) Notify Grantee promptly of any request by the Commission 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 Grantee, any other Federal or state governmental authority for amendments or supplements to the such Registration Statement or Prospectus prospectus which, in the opinion of counsel for Grantee, is required under the Securities Act or for additional information; (ii) the rules and regulations thereunder in connection with the distribution of the issuance Diana Shares of Xxxxtee, including any amendments or supplements requested by Grantee related to a change in the plan of distribution of securities by Grantee;
(h) Prepare and promptly file with the Commission of any stop order suspending the effectiveness and promptly notify Grantee of the Registration Statement covering any filing of such amendment or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect supplement 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event shall have occurred as the result of which any such prospectus or any document incorporated or deemed to be incorporated therein by reference untrue other prospectus as then in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any 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, in the light of the circumstances under in which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses ;
(i) through (iv) Advise Grantee promptly after it shall receive notice or obtain knowledge thereof, of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain of any stop order by the withdrawal of, (i) any order Commission suspending the effectiveness of the such Registration Statement or (ii) any suspension of the qualification (initiation or exemption from qualification) threatening of any proceeding for that purpose and promptly use its reasonable best efforts to prevent the issuance of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.stop order or to obtain its withdrawal if such stop order should be issued;
(ej) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and Not file any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement or prospectus to be listed which Grantee shall have reasonably objected on the New York Stock Exchange, the American Stock Exchange grounds that such amendment or the Nasdaq Stock Market.
(l) Comply supplement does not comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) requirements of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementrules and regulations thereunder, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within after having been furnished with a reasonable time copy thereof at least five business days prior to the filing thereof, unless in the opinion of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If counsel for Diana the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then filinx xx such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement is reasonably necessary to the Registration Statement filed protect Diana from any xxxxxlities under any applicable federal or prepared subsequent to the time that state law and such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder filing will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the not violate applicable Prospectus may be resumed, law; and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Stock Option Agreement (Diana Corp), Stock Option Agreement (Diana Corp)
Registration Procedures. In connection with the Company’s registration obligations hereunder, The procedures to be followed by the Company shalland each selling Holder, and the respective rights and obligations of the Company and such Holders, with respect to the preparation, filing and effectiveness of a Registration Statement, and the distribution of Registrable Securities pursuant thereto, are as follows:
(a) Prepare and file with the Commission on or prior to the Filing DeadlineThe Company will, a Registration Statement on Form S-3 at least five (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith5) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement theretothereto (other than any amendment or supplement made through the incorporation by reference of ordinary course Exchange Act filings), the Company shall (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the reasonable review of such Special Counsel, Holders and (ii) at use its commercially reasonable efforts to address in each such document when so filed with the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to Commission such inquiries comments as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel reasonably shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritpropose.
(b) The Company will use commercially reasonable efforts to (i) Prepare prepare and file with the Commission such amendments, including post-effective amendments, and supplements to the each Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable law with respect to keep the disposition of all Registrable Securities covered by such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; and (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the each Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to the Registration Statement; Holders as selling securityholders but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Company.
(ivc) The Company will comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statements and the disposition of all Registrable Securities covered by the each Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplementedStatement.
(cd) Notify The Company will notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; and (iiiii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(de) Use its best efforts to avoid the issuance of, or, if issued, The Company will use best commercially reasonable efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of the a Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdictionStatement, at the earliest practicable moment.
(e) If requested by , or if any Holder of Registrable Securitiessuch order or suspension is made effective during any Black-Out Period, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to at the Registration Statement such information as the Company reasonably agrees should be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as earliest practicable moment after the Company has received notification of the matters to be incorporated in such Prospectus supplement or postBlack-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable lawOut Period is over.
(f) Furnish During the Effectiveness Period, the Company will furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, thereto and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the XXXXX system.
(g) Promptly The Company will promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the each Prospectus or Prospectuses (including each form of prospectus) and each other than any amendment or supplement thereto made through the incorporation by reference of ordinary course Exchange Act filings) as such Persons may reasonably request; and request during the Effectiveness Period. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto in accordance with this Agreement.
(h) Prior The Company will, prior to any public offering of Registrable Securities, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special 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 applicable state securities or Blue Sky blue sky laws of such those jurisdictions within the United States as any Holder reasonably requests in writing, writing to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and use its commercially reasonable efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration StatementStatements; provided, however, that the Company shall will not be required to (i) qualify generally to do business or as a dealer in securities in any jurisdiction where it is not then so qualified or to (ii) take any action that which would subject it the Company to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate The Company will cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration StatementStatements, which certificates shall be free, to the extent permitted by applicable law and the Purchase AgreementIndenture, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securitiesin writing. In connection therewith, if required by the Company’s transfer agent, the Company shall will promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with its transfer agentagent when and as required by such transfer agent from time to time, together with any other authorizations, certificates and directions required by the transfer agent, agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the Holder holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) The Company will use commercially reasonable efforts to prepare such supplements or (iv), as promptly as possible, prepare a supplement or amendmentamendments, including a post-effective amendment, if required by applicable law, to the each applicable Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so thatthat such Registration Statement will be Available at all times during the Effectiveness Period; provided, as thereafter deliveredthat no such supplement, neither amendment or filing will be required during a Black-Out Period. No later than 8:00 p.m. (New York time) on any Trading Day on which the Company receives a written notice (a “Use Notice”) prior to 2:00 p.m. (New York time) on such Trading Day (or if such request is received after 2:00 p.m. (New York time), no later than 8:00 p.m. (New York time) on the following Trading Day) from a Holder that such Holder intends to use the Registration Statement nor to resell Registrable Securities, the Company will (A) provide written confirmation to such Prospectus Holder that the applicable Registration Statement is Available or (B) provide written notice (a “Suspension Notice”) that the use of such Registration Statement is suspended due to a Black-Out Period. No Suspension Notice will contain an untrue statement the reason for the Black-Out Period. The Company will promptly provide the Holders written notice when the Black-Out Period. If a Black-Out Period commences during any 30 Trading Day period following delivery of a material fact or omit to state Use Notice and a material fact required to be stated therein or necessary to make notice from the statements thereinCompany under clause (A) above, in the light of Company will provide as promptly as practicable the circumstances under which they were made, not misleadingHolders with written notice thereof and that the Registration Statement is no longer Available.
(k) Cause all Notwithstanding any other provision of the Agreement, no Holder of Registrable Securities relating to such may include any of its Registrable Securities in the Registration Statement pursuant to this Agreement unless the Holder furnishes to the Company a completed questionnaire substantially in the form of Exhibit A (the “Questionnaire”) for use in connection with the Registration Statement at least ten (10) Trading Days prior to the filing of the Registration Statement; provided, however, an Investor shall not be listed on required to furnish a Questionnaire in connection with the New York Stock Exchange, initial Registration Statement if such Investor owns Notes initially purchased by such Investor at the American Stock Exchange or Closing as of the Nasdaq Stock Marketinitial Filing Date. Each Holder who intends to include any of its Registrable Securities in the Registration Statement shall promptly furnish the Company in writing such other information as the Company may reasonably request in writing.
(l) Comply The Holders may distribute the Registrable Securities by means of up to two underwritten offerings; provided that (a) the Electing Holders provide written notice to the Company of their intention to distribute Registrable Securities by means of an underwritten offering, (b) the managing underwriter or underwriters thereof shall be designated by the Electing Holders; provided, however, that such designated managing underwriter or underwriters shall be reasonably acceptable to the Company, (c) each Holder participating in all material respects with all applicable rules and regulations of the Commission and make generally available such underwritten offering agrees to its security holders earnings statements satisfying the provisions of Section 11(a) of the sell such Holder’s Registrable Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day basis provided in any underwriting arrangements approved by the persons entitled selecting the managing underwriter or underwriters hereunder and (d) each Holder participating in such underwritten offering completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the first fiscal quarter terms of such underwriting arrangements. The Company hereby agrees with each Holder that, in connection with any underwritten offering in accordance with the Company after terms hereof, it will negotiate in good faith and execute all indemnities, underwriting agreements and other documents reasonably required under the effective date terms of the Registration Statementsuch underwriting arrangements, which statement shall conform including using all commercially reasonable efforts to the requirements of Rule 158procure customary legal opinions and auditor “comfort” letters.
(m) Request each selling Holder In the event the Holders seek to furnish complete an underwritten offering pursuant to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration StatementSection 3(l), and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within for a reasonable time period prior to the filing of each any Registration Statement, supplemented Prospectus and/or amended Registration Statement. If and throughout the Registration Statement refers to any Holder Effectiveness Period, the Company will make available upon reasonable notice at the Company’s principal place of business or such other reasonable place for inspection by name the managing underwriter or otherwise as the holder of any securities underwriters selected in accordance with Section 3(l), such financial and other information and books and records of the Company, then such Holder shall have and cause the right officers, employees, counsel and independent certified public accountants of the Company to require (if such reference respond to such Holder inquiries, as shall be reasonably necessary (and in the case of counsel, not violate an attorney-client privilege in such counsel’s reasonable belief), to conduct a reasonable investigation within the meaning of Section 11 of the Securities Act; provided, however, that the foregoing inspection and information gathering on behalf of the Holders (and any managing underwriter or underwriters) shall be conducted by name legal counsel to the Holders (and legal counsel to such managing underwriter or otherwise is underwriters); provided further, that each such party shall be required to maintain in confidence and not required to disclose to any other Person any information or records reasonably designated by the Securities Act or any similar federal statute then Company as being confidential, until such time as (A) such information becomes a matter of public record (whether by virtue of its inclusion in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to in any other manner other than through the time that such reference ceases to be required. Each Holder agrees by its acquisition release of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of information by any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), Person afforded access to such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(jinformation pursuant hereto), or until it is advised in writing (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 “Advice”) by matter (subject to the requirements of such order, and only after such Person shall have given the Company that the use prompt prior written notice of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”requirement).
Appears in 2 contracts
Samples: Registration Rights Agreement, Registration Rights Agreement (Netflix Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, furnish via email to those Investors who have supplied the Company shall (i) furnish to the Special Counsel, with email addresses copies of all such documents proposed to be filed, which documents (other than those any document that is incorporated or deemed to be incorporated by referencereference therein) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities ActInvestors. The Company shall not file reflect in each such document when so filed with the Registration Statement or any SEC such Prospectus or any amendments or supplements thereto to which comments regarding the Holders Investors and the plan of a majority of distribution as the Registrable Securities or the Special Counsel shall Investors may reasonably object in writing within three (3) Business and promptly propose no later than two Trading Days after their receipt thereof, unless counsel to the Company determines in writing that Investors have been so furnished with copies of such objection is without meritdocuments as aforesaid.
(i) Prepare Subject to Section 6.1(e), prepare and file with the Commission SEC such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin 12 Trading Days (except to the extent that the Company reasonably requires additional time to respond to accounting comments), to any comments received from the Commission SEC with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statementthereto; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Investors thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel Investors as promptly as possible reasonably possible, and if requested by the Investors confirm such notice in writing no later than one Trading Day thereafter, of any of the following events: (Ai) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission SEC notifies the Company whether there will be a “review” of such any Registration Statement and whenever Statement; (ii) the Commission SEC comments in writing on such any Registration Statement; and (Ciii) with respect to the any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission SEC or any other Federal or state governmental authority for amendments requests any amendment or supplements supplement to the any Registration Statement or Prospectus or for requests additional informationinformation related thereto; (iiv) of the issuance by the Commission of SEC issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiivi) of the receipt by the Company receives notice 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 threat of any Proceeding for such purpose; and or (ivvii) if the financial statements included in the any Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any other document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain contains any untrue statement of a material fact or omit 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. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas soon as possible.
(e) If requested by any Holder of Registrable Securitiesan Investor, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement provide such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, Investor without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the CommissionSEC.
(gf) Promptly deliver to each Holder and the Special CounselInvestor, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Investors in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto to the extent permitted by federal and state securities laws and regulations.
(g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all steps necessary to cause such Common Shares to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to each Investor evidence of such listing; and (iv) except as a result of the Excluded Events, during the Effectiveness Period, maintain the listing of such Common Shares on each such Trading Market or another Eligible Market.
(h) Prior to any public offering of Registrable Securities, use its best efforts Best Efforts to register or qualify or cooperate with the selling Holders and the Special Counsel Investors 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 Holder Investor requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during for so long as required, but not to exceed the duration of the Effectiveness Period Period, and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required obligated to file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then otherwise so subject.
(i) Cooperate with the Holders Investors 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, to the extent permitted by applicable law this Agreement and the Purchase Agreementunder law, of all restrictive legends, and to enable such Registrable Securities certificates to be in such denominations and registered in such names as any Holder such Investors may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementreasonably request.
(j) Upon the occurrence of any event contemplated by described in Section 3(c)(C)(iii) or (iv6.2(c)(vii), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Cooperate with any reasonable due diligence investigation undertaken by the Investors in connection with the sale of Registrable Securities relating Securities, including, without limitation, by making available documents and information; provided that the Company will not deliver or make available to any Investor material, nonpublic information unless such Registration Statement Investor requests in advance in writing to be listed on the New York Stock Exchangereceive material, the American Stock Exchange or the Nasdaq Stock Marketnonpublic information and agrees to keep such information confidential.
(l) Comply with all rules and regulations of the SEC applicable to the registration of the Securities.
(m) It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of any particular Investor or to make any Event Payments set forth in all material respects Section 6.1(c) to such Investor that such Investor furnish to the Company the information specified in Exhibits X-0, X-0 and B-3 hereto and such other information regarding itself, the Registrable Securities and other shares of Common Stock held by it and the intended method of disposition of the Registrable Securities held by it (if different from the Plan of Distribution set forth on Exhibit D hereto) as shall be reasonably required to effect the registration of such Registrable Securities and shall complete and execute such documents in connection with such registration as the Company may reasonably request.
(n) The Company shall comply with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of SEC under the Securities Act and the Exchange Act, including, without limitation, Rule 158 not later than 45 days after 172 under the end of Securities Act, file any 3-month period (final Prospectus, including any supplement or 90 days after amendment thereof, with the end of SEC pursuant to Rule 424 under the Securities Act, promptly inform the Investors in writing if, at any 12-month period if such period is a fiscal year) commencing on time during the first day of the first fiscal quarter of Effectiveness Period, the Company after does not satisfy the effective date conditions specified in Rule 172 and, as a result thereof, the Investors are required to make available a Prospectus in connection with any disposition of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities and take such other actions as is required by law or may be reasonably necessary to facilitate the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration of the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementhereunder.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Zosano Pharma Corp), Securities Purchase Agreement (Zosano Pharma Corp)
Registration Procedures. In connection with the Company’s registration obligations hereunderfiling of any Registration Statement pursuant to Section 2 or 3 hereof, the Company shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company hereunder the Company shall:
(a) Prepare and file with the Commission on or SEC prior to the Filing DeadlineDate, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)Statement, and use its best efforts to cause the such Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the that, before filing of the any Registration Statement or any related Prospectus or any amendment amendments or supplement supplements thereto, the Company shall (i) furnish to and afford the Special CounselHolders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including, if requested in writing, copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed, which documents filed (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) in each case at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond least five business days prior to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Actfiling). The Company shall not file the any Registration Statement or any such Prospectus or any amendments or supplements thereto to which if the Holders of a majority of the shares of Registrable Securities covered by such Registration Statement, their counsel, or the Special Counsel managing underwriters, if any, shall reasonably object in writing within three (3) Business Days two business days after their the receipt thereof, unless counsel . Notwithstanding anything to the contrary contained in this Agreement, the Company determines shall not be required to engage in writing that such objection is without meritmore than one Underwritten Offering, if any, pursuant to this Agreement.
(ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendmentsamendments to each Demand Registration Statement, to the Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus to be amended or supplemented by any Prospectus supplement required Prospectus supplementby applicable law, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the selling Holders of Registrable Securities to be sold Securities, their counsel and the Special Counsel as managing underwriters, if any, reasonably promptly as possible (Abut in any event within five business days), and confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to under the Purchasers and Special Counsel on the same day as such effectiveness)Securities Act, and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission SEC 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Registration Rights Agreement (Marquee Group Inc), Registration Rights Agreement (Marquee Group Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; , (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; 424, (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and provide as promptly as reasonably possible provide to the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Registration Statement; Company may excise any information contained therein which would constitute material non-public information as to any Holder which has not executed a confidentiality agreement with the Company), and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex A (a “Selling Stockholder Questionnaire”) on a date that is not less than four (4) Trading Days prior to the Filing Date.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(db) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order stopping or suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lc) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(md) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in natural persons thereof that have voting and dispositive control over the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)shares.
Appears in 2 contracts
Samples: Registration Rights Agreement (Red Metal Resources, Ltd.), Registration Rights Agreement
Registration Procedures. In connection with the Company’s case of each registration obligations hereundereffected by the Company pursuant to this Article II, the Company shallwill use its reasonable best efforts to effect such registration to permit the sale of securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable and will keep the Holders advised on a reasonably current basis as to the initiation of each registration and as to the completion thereof. At its expense, the Company will use its reasonable best efforts to:
(a) Prepare the required TZE Registration Statement, including all exhibits and file with the Commission on or prior financial statements required pursuant to the Filing DeadlineSecurities Act to be filed therewith, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for and before filing such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)statement, and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus amendments or any amendment or supplement supplements thereto, the Company shall (i) or Prospectus, furnish to the Special Counsel, Holder or group of Holders copies of all such documents proposed prepared to be filed, which documents (other than those incorporated by reference) will shall be subject to the review of, the Holder or group of such Special Counsel, Holders and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.respective counsel;
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(mPeriod, (ii) hereof, shall prepare and file with the Commission such as promptly as practicable any additional Registration Statements registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities; , (iiiii) cause the any related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended amended, to be filed pursuant to Rule 424 424, (or any similar provisions then in force) promulgated under the Securities Act; (iiiiv) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; thereto, and (ivv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the TZE Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof as set forth in the TZE Registration Statement as so amended or in such Prospectus as so supplementedStatement.
(c) Notify Furnish to the Holder or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus Holders or any Prospectus supplement underwriter may reasonably request of the TZE Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(d) Furnish, without charge, such number of Prospectuses, including any preliminary Prospectuses, and other documents incident thereto, including any amendment of or supplement to the Prospectus, as the Holder or group of Holders may from time to time reasonably request;
(e) On or prior to the date on which the TZE Registration Statement is proposed declared effective, to the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be filed reasonably requested by the Holder or group of Holders; provided, however, that the Company 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 states or jurisdictions where it is not then so subject;
(but f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in no event in writing and provide copies of the case of this subparagraph relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (A), less than three (3) Business Days prior to date of such filing); (Bi) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any written comments by the Commission or any request by the Commission or any other Federal federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; ;
(iig) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering or any order by the Commission or all any other federal or state governmental authority or regulatory authority preventing or suspending the use of the Registrable Securities any preliminary or final Prospectus or the initiation initiation, or written threatened initiation, of any Proceedings proceedings for that purposesuch purposes; (iiiii) 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 securities so registered for offering or sale in any jurisdictionjurisdiction or the initiation, or the initiation or threatening written threatened initiation, of any Proceeding proceeding for such purpose; and (iviii) if at any time when a Prospectus relating to the financial statements included in the TZE Registration Statement become ineligible for inclusion therein or is required to be delivered pursuant to the Securities Act of the occurrence of any event that makes any statement made as a result of which the Prospectus included in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectussuch registration statement, as the case may bethen in effect, it will not contain any 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, therein in the light of the circumstances under which they were made, not misleading. Without limitation , and following such notification promptly prepare and furnish to any remedies to which the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivereddelivered to the purchasers of such securities, neither the Registration Statement nor such Prospectus will shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading.;
(h) Prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(i) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter and the Holder or group of Holders agree should be included therein relating to the plan of distribution with respect to such securities, and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(j) Cooperate with the Holder or group of Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold that are in a form eligible for deposit with The Depository Trust Company and that do not bear any restrictive legends, and enable such securities to be in such denominations and registered in such names as the managing underwriter may request at least two Business Days prior to any sale of securities in any underwritten offering that meets the requirements of Section 2.1(e);
(k) Provide a transfer agent and registrar for all Securities registered pursuant to the TZE Registration Statement and a CUSIP number for all such securities, in each case not later than the effective date of such registration;
(l) Cause all Registrable Securities relating to such Registration Statement securities registered hereunder to be listed on each securities exchange on which the New York Stock Exchangesame securities issued by the Company are then listed;
(m) In connection with any underwritten offering meeting the requirements of Section 2.1(e), enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of such securities, provided that (i) such underwriting agreement contains reasonable and customary provisions, (ii) if participating in such underwriting, a Holder shall also enter into and perform its respective obligations pursuant to such agreement, (iii) if participating in such underwriting, the American Stock Exchange or indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the Nasdaq Stock Market.aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering;
(ln) Comply in all material respects In connection with all applicable rules any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and regulations the underwriter an opinion from counsel for the Company dated the date of the Commission closing pursuant to the underwriting agreement, in customary form, scope and make generally substance, which opinion shall be reasonably satisfactory to such Holder or group of Holders and to the underwriter, as the case may be, and their respective counsel;
(o) In connection with any underwritten offering meeting the requirements of Section 2.1(e) pursuant to the TZE Registration Statement, obtain for delivery to the Company and the managing underwriter, with copies to any Holder or group of Holders, a “cold comfort” letter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing underwriter reasonably requests, dated the date of execution of the underwriting agreement and brought down to the closing pursuant to the underwriting agreement;
(p) Cooperate with any Holder or group of Holders and each underwriter, if any, participating in the disposition of such securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.;
(q) Make available to its security holders holders, as soon as reasonably practicable, an earnings statements statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of Act;
(r) In connection with any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to underwritten offering meeting the requirements of Rule 158.
(mSection 2.1(e) Request each selling Holder to furnish to make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by any Holder, by the Company information regarding such Holder managing underwriter and the distribution of such Registrable Securities as is required by law any attorney, accountant or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of other agent retained by any such Holder who fails (i) to furnish or any such information or (ii) to agree to furnishunderwriter, upon requestall pertinent financial and other records, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities corporate documents and properties of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force) the deletion and cause all of the reference Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to such Holder in any amendment or supplement make themselves available to discuss the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition business of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of and to supply all information reasonably requested by any event of the kind described such Person in Section 3(c)(i)connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), provided that any such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed Person gaining access to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which pursuant to this Section 2.4(r) shall agree to hold such information in strict confidence and shall not make any disclosure or use any such information that the Company’s Board of Directors (the “Board”) reasonably Company determines not in good faith to be in confidential, and of which determination such Person is notified, unless (i) the Company’s best interest to disclose and which the Company release of such information is not otherwise required to disclose, or by law; (ii) there such information is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (becomes publicly known other than in the ordinary course through a breach of business) this or any mergerother agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, consolidation, tender offer which source had no contractual or other similar transaction) available duty of confidentiality to the Company with respect to such information and of which the Board reasonably determines not Holder is aware; or (iv) such information is independently developed by such Person; and
(s) In connection with any underwritten offering meeting the requirements of Section 2.1(e), cause the senior executive officers of the Company to be participate in the Company’s best interest customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to disclose facilitate, cooperate with, and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days participate in the aggregate during any 12 month period (each, a “Blackout Period”)each proposed offering contemplated herein and customary selling efforts related thereto.
Appears in 2 contracts
Samples: Registration Rights Agreement (Maxeon Solar Technologies, Ltd.), Convertible Notes Purchase Agreement (Maxeon Solar Technologies, Ltd.)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the each Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall shall, (i) furnish to the Special Counsel, each Holder copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing within three (3) Business no later than 3 Trading Days after their receipt thereof, unless counsel to the Company determines in writing that Holders have been so furnished copies of such objection is without meritdocuments.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 75% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 150% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable Securities to be sold and (which notice shall, pursuant to clauses (ii) through (vi) hereof, be accompanied by an instruction to suspend the Special Counsel use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation ; and (vi) the occurrence or existence of any pending corporate development with respect to any remedies to which the Holders Company that the Company believes may be entitled under this Agreementmaterial and that, if any in the determination of the events described Company, makes it not in clauses (i) through (iv) the best interest of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness allow continued availability of the Registration Statement or (ii) Prospectus; provided that any suspension and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder’s agreement to keep such information confidential, the qualification (or exemption from qualification) of Holders make no acknowledgement that any of the Registrable Securities for sale in any jurisdictionsuch information is material, at the earliest practicable momentnon-public information.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and . Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any public offering of Registrable Securities, use its best Use commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) resale of such Registrable Securities for offer and sale as required under the applicable securities or Blue Sky laws of such jurisdictions each State within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration StatementPeriod; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(ig) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(jh) Upon the occurrence of any event contemplated by this Section 3(c)(C)(iii) or (iv)3, as promptly as possiblereasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (v) of Section 3(d) above to suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of a Registration Statement and Prospectus, subject to the payment of partial liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(li) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a(i) any order suspending the effectiveness of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to or (ii) any suspension of the requirements qualification (or exemption from qualification) of Rule 158any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(mk) Request The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each selling Holder to furnish to the Company information regarding a statement as to the number of shares of Common Stock beneficially owned by such Holder and, if requested by the Commission and the distribution Holder is not an individual, the controlling person thereof, within three Trading days of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and Company’s request. During any periods that the Company may exclude from such is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities of solely because any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities three Trading Days of the Company’s request, then any partial liquidated damages that are accruing as to the Holders at such Holder time shall have the right to require (if such reference be tolled and any Event that may otherwise occur as to such Holder by name or otherwise solely because of such delay shall be suspended, until such information is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement delivered to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementCompany.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Registration Rights Agreement (World Health Alternatives Inc), Securities Purchase Agreement (World Health Alternatives Inc)
Registration Procedures. In connection with the Company’s Registration to be effected pursuant to the Resale Shelf Registration Statement, and whenever the 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 the registration obligations hereunderand the sale of such Registrable Securities in accordance with the intended method of disposition thereof, the Company shalland pursuant thereto Pubco shall as expeditiously as reasonably possible:
(a) Prepare prepare in accordance with the Securities Act and all applicable rules and regulations promulgated thereunder and file with the Commission on or prior a registration statement, and all amendments and supplements thereto and related prospectuses as may be necessary to the Filing Deadlinecomply with applicable securities laws, a Registration Statement on Form S-3 (or if with respect to such form is not available Registrable Securities and use its reasonable best efforts to the Company on another form appropriate for cause such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement statement to become effective and remain effective as (provided herein; provided, however, that not less than three at least five (35) Business Days prior to the before filing of the Registration Statement a registration statement or prospectus or any related Prospectus amendments or any amendment or supplement supplements thereto, the Company Pubco shall (i) furnish to counsel selected by the Special Counsel, Applicable Approving Party copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will shall be subject to the review and comment of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.counsel);
(ib) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders notify each holder of Registrable Securities to be sold and the Special Counsel as promptly as possible of (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities registration statement or the initiation of any Proceedings proceedings for that purpose; , (iiiB) of the receipt by the Company Pubco or its 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, jurisdiction or the initiation or threatening of any Proceeding proceeding for such purpose; , and (ivC) 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 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 financial statements 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 Registration Statement become ineligible for inclusion therein or disposition of the occurrence 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 4(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 that makes as a result of which 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 Statement statements therein not misleading, and, at the request of any such seller, Pubco promptly shall prepare, file with the Commission and furnish to each such seller a reasonable number of copies of a supplement or Prospectus or any document incorporated or deemed amendment to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents such prospectus so that, in as thereafter delivered to the case 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;
(h) cause all such Registrable Securities to be listed on each securities exchange on which similar securities issued by Pubco are then listed and, if not so listed, to be listed on a securities exchange and, without limiting the generality of the Registration Statement 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 (including underwriting agreements in customary form) and take all such other actions as the Applicable Approving Party or the Prospectusunderwriters, if any, 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 case underwriters managing such offering may bereasonably request);
(k) make available for inspection by any seller of Registrable Securities, it will 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 Pubco as shall be necessary 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 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) 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 any 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. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses ;
(im) through (iv) of Section 3(c)(C) occurs, the Company shall otherwise use its reasonable best efforts to respond to comply with all applicable rules and correct regulations of the event.Commission;
(dn) Use permit any holder of Registrable Securities who, in its best efforts good faith judgment (based on the advice of counsel), could reasonably be expected to avoid 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;
(o) in the event of the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) of any stop order suspending the effectiveness of a registration statement, or of any order suspending or preventing the Registration Statement use of any related prospectus or (ii) any suspension of suspending the qualification (or exemption from qualification) of any of the Registrable Securities Common Stock included in such registration statement for sale in any jurisdiction, at Pubco shall use its reasonable best efforts promptly to obtain the earliest practicable moment.withdrawal of such order;
(ep) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment use its reasonable best efforts to the Registration Statement cause such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment registration statement to be registered with or supplement thereto.approved by such other governmental agencies or authorities as may be necessary to enable the sellers thereof to consummate the disposition of such Registrable Securities;
(hq) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) holders of such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; providedthe registration statement and the managing underwriter or agent, howeverif any, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing Registrable Securities securities to be sold pursuant to a Registration Statement, which certificates shall be free, to under the extent permitted by applicable law registration statement and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewiththe managing underwriter, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its transfer or agent, together if any, or such holders may request;
(r) cooperate with any other authorizations, certificates and directions 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 each holder of Registrable Securities under covered by the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) registration statement and each underwriter or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, agent participating in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities and their respective counsel in connection with any filings required to be made with FINRA;
(s) if such registration includes an underwritten public offering, use its reasonable best efforts to obtain a cold comfort letter from Pubco’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 Pubco’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 Pubco files an Automatic Shelf Registration Statement until 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 Holder’s receipt Automatic Shelf Registration Statement is required to remain effective;
(v) 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 sold; and
(w) 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 copies of the supplemented Prospectus and/or amended third year, refile a new Automatic Shelf Registration Statement contemplated by Section 3(j), or until it is advised in writing (covering the “Advice”) by the Company that the use of the applicable Prospectus may be resumedRegistrable Securities, and, in either caseif at any time when Pubco is required to re-evaluate its WKSI status Pubco determines that it is not a WKSI, has received copies of any additional 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 supplemental filings that are incorporated or deemed Shelf Registration, if necessary) during the period throughout which such registration statement is required to be incorporated by reference in such Prospectus or Registration Statementkept effective.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 2 contracts
Samples: Registration Rights and Lock Up Agreement (ARKO Corp.), Registration Rights and Lock Up Agreement (Haymaker Acquisition Corp. II)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing DeadlineDate, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration and any additional Registration Statements as may be required) in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached heretowith Section 2(a), and cause the Registration Statement to become effective and remain effective as provided herein; providedPROVIDED, howeverHOWEVER, that not less than three five (35) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to the Holders, their Special CounselCounsel and any managing underwriters, copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, their Special CounselCounsel and such managing underwriters, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such HoldersHolders and such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities Securities, their Special Counsel, or the Special Counsel any managing underwriters, shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meriton a timely basis.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, practicable to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the sold, their Special Counsel as promptly as possible and any managing underwriters immediately (Aand, in the case of (i)(A) below, not less than five (5) days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Business Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; Statement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders) and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) if at any time any of the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (ivvi) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder managing underwriter or the Holders of a majority in interest of the Registrable SecuritiesSecurities to be sold in connection with an Underwritten Offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company such managing underwriters and such Holders reasonably agrees agree should 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 to be incorporated in such Prospectus supplement or post-effective amendment; providedPROVIDED, howeverHOWEVER, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel)Company, violate applicable lawlaw or be materially detrimental to the business prospects of the Company.
(f) Furnish to each Holder Holder, their Special Counsel and the Special Counselany managing underwriters, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent reasonably requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Holder, their Special Counsel, and any underwriters, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders and any underwriters in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Holders, any underwriters and the their Special 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 laws of such jurisdictions within the United States as any Holder or underwriter requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; providedPROVIDED, howeverHOWEVER, that the Company 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 that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders and any managing underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such managing underwriters or Holders may request at least two (2) three Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(vi), as promptly as possiblepracticable, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause Use its best efforts to cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock ExchangeOTC Bulletin Board and any other securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which similar securities issued by the American Stock Exchange or Company are then listed as and when required pursuant to the Nasdaq Stock MarketPurchase Agreement.
(l) In the case of an Underwritten Offering, enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including those reasonably requested by any managing underwriters and the Holders of a majority of the Registrable Securities being sold) in order to expedite or facilitate the disposition of such Registrable Securities, and whether or not an underwriting agreement is entered into, (i) make such representations and warranties to such Holders and such underwriters as are customarily made by issuers to underwriters in underwritten public offerings, and confirm the same if and when requested; (ii) obtain and deliver copies thereof to each Holder and the managing underwriters, if any, of opinions of counsel to the Company and updates thereof addressed to each selling Holder and each such underwriter, in form, scope and substance reasonably satisfactory to any such managing underwriters and Special Counsel to the selling Holders covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such Special Counsel and underwriters; (iii) immediately prior to the effectiveness of the Registration Statement or at the time of delivery of any Registrable Securities sold pursuant thereto (at the option of the underwriters), obtain and deliver copies to the Holders and the managing underwriters, if any, of "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent 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 each Person and in such form and substance as are customary in connection with Underwritten Offerings; (iv) if an underwriting agreement is entered into, the same shall contain indemnification provisions and procedures no less favorable to the selling Holders and the underwriters, if any, than those set forth in Section 7 (or such other provisions and procedures acceptable to the managing underwriters, if any, and holders of a majority of Registrable Securities participating in such Underwritten Offering; and (v) deliver such documents and certificates as may be reasonably requested by the Holders of a majority of the Registrable Securities being sold, their Special Counsel and any managing underwriters to evidence the continued validity of the representations and warranties made pursuant to clause 3(l)(i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company.
(m) Make available for inspection by the selling Holders, a representative of such Holders, an underwriter participating in any disposition of Registrable Securities, and an attorney or accountant retained by such selling Holders or underwriters, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors, agents and employees of the Company and its subsidiaries to supply all information in each case requested by any such Holder, representative, underwriter, attorney or accountant in connection with the Registration Statement; PROVIDED, HOWEVER, that any information that is determined in good faith by the Company in writing to be of a confidential nature at the time of delivery of such information shall be kept confidential by such Persons, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities; (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law; (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person; or (iv) such information becomes available to such Person from a source other than the Company and such source is not known by such Person to be bound by a confidentiality agreement with the Company.
(n) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) 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 and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to cover said 12-month period, or end shorter periods as is consistent with the requirements of Rule 158.
(mo) Request The Company may require each selling Holder to furnish to the Company such information regarding such Holder and the distribution of such Registrable Securities and the beneficial ownership of Common Stock held by such selling Holder as is required by law or the Commission to be disclosed in the Registration Statement, Statement and the Company may exclude from such registration the Registrable Securities of any such Holder who unreasonably fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then after receiving such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementrequest.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Fix Corp International Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company pursuant to and in accordance with Sections 1 and 2 hereof (and subject to Sections 1 and 2 hereof), the Company shall:shall use commercially reasonable efforts to effect such registration to permit the sale of such Registrable Shares in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall as expeditiously as possible (but subject to Sections 1 and 2 hereof):
(a) Prepare prepare and file with the Commission on or prior to the Filing Deadline, SEC a Registration Statement for the sale of the Registrable Shares on Form S-3 (or if such any form is not available to for which the Company on another form then qualifies or which counsel for the Company shall deem appropriate for such registration in accordance herewithwith such Holders' intended method or methods of distribution thereof, subject to Section 1(b) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)hereof, and use commercially reasonable efforts to cause the such Registration Statement to become effective and remain effective as provided PROVIDED herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.;
(ib) Prepare prepare and file with the Commission SEC such amendments, amendments (including post-effective amendments) to such Registration Statement, and such supplements to the Registration Statement related Prospectus, as may be necessary to keep the Registration Statement continuously effective as to required by the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereofrules, shall prepare and file with the Commission such additional Registration Statements in order to register for resale regulations or instructions under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition specified by the Holders thereof set forth in of the Registrable Shares covered by such Registration Statement as so amended or in such Statement, make generally available earnings statements satisfying the provisions of Section 11(a) of the Securities Act (provided that the Company shall be deemed to have complied with this clause if it has complied with Rule 158 under the Securities Act), and cause the related Prospectus as so supplemented.supplemented to be filed pursuant to Rule 424 under the Securities Act; PROVIDED, HOWEVER, that before filing a Registration Statement or Prospectus, or any amendments or supplements thereto (other than reports required to be filed by it under the Exchange Act), the Company shall furnish to the Holders of Registrable Shares covered by such Registration Statement and their counsel for review and comment, copies of all documents proposed to be filed;
(c) Notify notify the Holders of any Registrable Securities to be sold Shares covered by such Registration Statement promptly and the Special Counsel as promptly as possible (Aif requested) confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the such Registration Statement or any post-effective amendment, when the same has become effective effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority SEC for amendments or supplements to the such Registration Statement or the related Prospectus or for additional information; information regarding such Holders, (iiiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings proceedings for that purpose; , (iiiiv) 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 Shares for sale in any jurisdiction, jurisdiction or the initiation or threatening of any Proceeding proceeding for such purpose; , and (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence happening of any event that makes requires the making of any statement made changes in the such Registration Statement or Statement, Prospectus or any document documents incorporated or deemed to be incorporated therein by reference untrue in any material respect or so that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it they will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.;
(d) Use its best efforts to avoid the issuance of, or, if issued, use best commercially reasonable efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of such Registration Statement, or the Registration Statement or (ii) lifting of any suspension of the qualification (or exemption from qualification) qualification of any of the Registrable Securities Shares for sale in any jurisdiction, at jurisdiction in the earliest practicable moment.United States;
(e) If requested by any furnish to the Holder of any Registrable SecuritiesShares covered by such Registration Statement, (i) promptly incorporate in a Prospectus supplement or each counsel for such Holders and each managing underwriter, if any, without charge, one conformed copy of such Registration Statement, as declared effective by the SEC, and of each post-effective amendment thereto, in each case including financial statements and schedules and all reports incorporated or deemed to be incorporated therein by reference; and deliver, without charge, such number of copies of the Registration Statement such information as the Company reasonably agrees should be included therein preliminary prospectus, any amended preliminary prospectus, each final Prospectus and (ii) make all required filings of such Prospectus supplement or such any post-effective amendment or supplement thereto, as soon as practicable after such Holder may reasonably request in order to facilitate the Company has received notification disposition of the matters to be incorporated Registrable Shares of such Holder covered by such Registration Statement in such Prospectus supplement or post-effective amendment; provided, however, that conformity with the Company shall not be required to take any action pursuant to this Section 3(e) that would, in requirements of the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.Securities Act;
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior prior to any public offering of Registrable SecuritiesShares covered by such Registration Statement, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions within as the United States as any Holder requests Holders of such Registrable Shares shall reasonably request in writing; PROVIDED, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, howeverHOWEVER, that the Company shall not in no event be required to qualify generally to do business as a foreign corporation or as a dealer in any jurisdiction where it is not then at the time so qualified or to execute or file a general consent to service of process in any such jurisdiction where it has not theretofore done so or to take any action that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax taxation in any such jurisdiction where it is not then so subject.;
(ig) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iiiparagraph 3(c)(v) or (iv), as promptly as possibleabove, prepare a supplement or amendment, including a post-effective amendment, amendment to the such Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, reference and file any other required document so that, as thereafter delivereddelivered to the purchaser of the Registrable Shares being sold thereunder (including upon the termination of any Delay Period), neither the Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(kh) Cause use its best efforts to cause all Registrable Securities relating to Shares covered by such Registration Statement to be listed on each securities exchange, if any, on which similar securities issued by the New York Company are then listed or quoted and, if no such securities are so listed, to be listed on the Nasdaq Stock ExchangeMarket and, the American Stock Exchange or if listed on the Nasdaq Stock Market., use its best efforts to secure designation of all such Registrable Shares covered by such registration statement as "NASDAQ Securities" within the meaning of Rule 11Aa2-1 promulgated under the Exchange Act or, failing that, to secure Nasdaq Stock Market authorization for such Registrable Shares;
(li) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (on or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after before the effective date of such Registration Statement, provide the transfer agent of the Company for the Registrable Shares with printed certificates for the Registrable Shares covered by such Registration Statement, which statement are in a form eligible for deposit with The Depository Trust Company;
(j) make available for inspection by any Holder of Registrable Shares included in such Registration Statement, any underwriter participating in any offering 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 and other information, pertinent corporate documents and properties of any of the Company and its Subsidiaries and affiliates (collectively, the "Records"), as shall conform be reasonably necessary to enable them to exercise their due diligence responsibilities; PROVIDED, HOWEVER, that the Records that the Company determines, in good faith, to be confidential and which it notifies the Inspectors in writing are confidential shall not be disclosed to any Inspector unless such Inspector signs a confidentiality agreement reasonably satisfactory to the requirements Company (which shall permit the disclosure of Rule 158.such Records in such Registration Statement or the related Prospectus if necessary to avoid or correct a material misstatement in or material omission from such Registration Statement or Prospectus) or either (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; PROVIDED, FURTHER, that (A) any decision regarding the disclosure of information pursuant to subclause (i) shall be made only after consultation with counsel for the applicable Inspectors and the Company and (B) with respect to any release of Records pursuant to subclause (ii), each Holder of Registrable Shares agrees that it shall, promptly after learning that disclosure of such Records is sought in a court having jurisdiction, give notice to the Company so that the Company, at the Company's expense, may undertake appropriate action to prevent disclosure of such Records; and
(mk) Request if such offering is an underwritten offering, enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in underwritten offerings) and take all such other appropriate and reasonable actions requested by the Holders of a majority of the Registrable Shares being sold in connection therewith (including those reasonably requested by the managing underwriters) in order to expedite or facilitate the disposition of such Registrable Shares, and in such connection, (i) use commercially reasonable 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 and counsel to the Holders of the Registrable Shares being sold), addressed to each selling Holder to furnish of Registrable Shares covered by such Registration Statement and each of the underwriters as to the matters customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such counsel and underwriters, (ii) use commercially reasonable efforts to obtain "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each selling holder of Registrable Shares covered by the Registration Statement (unless such accountants shall be prohibited from so addressing such letters by applicable standards of the accounting profession) and each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "cold comfort" letters in connection with underwritten offerings, (iii) if requested and if an underwriting agreement is entered into, provide indemnification provisions and procedures reasonably requested by such underwriters. The above shall be done at each closing under such underwriting or similar agreement, or as and to the extent required thereunder. The Company may require each Holder of Registrable Shares covered by a Registration Statement to furnish, within a period not less than 20 days from the date of receipt of such request, such information regarding such Holder and the distribution such Holder's intended method of disposition of such Registrable Securities Shares as it may from time to time reasonably request in writing. If any such information is required by law or the Commission to be disclosed in the Registration Statementnot furnished within such period, and the Company may exclude such Holder's Registrable Shares from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Each Holder of Registrable Shares covered by a Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a any notice from the Company of the occurrence happening of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n)3(c)(v) hereof, that such Holder will shall forthwith discontinue disposition of any Registrable Shares covered by such Registrable Securities under the Registration Statement or the related Prospectus until such Holder’s receipt of the copies of the supplemented or amended Prospectus and/or amended Registration Statement contemplated by Section 3(j)3(g) hereof, or until it such Holder is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, and has received copies of any amended or supplemented Prospectus or any additional or supplemental filings that which are incorporated incorporated, or deemed to be incorporated incorporated, by reference in such Prospectus or Registration Statement.
(nsuch period during which disposition is discontinued being an "Interruption Period") If (i) there is material non-public information regarding the Company which and, if requested by the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available Holder shall deliver to the Company which (at the Board reasonably determines expense of 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 Shares at the time of receipt of such request. Each Holder of Registrable Shares covered by a Registration Statement further agrees not to be utilize any material other than the applicable current preliminary prospectus or Prospectus in connection with the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness offering of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)such Registrable Shares.
Appears in 1 contract
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business within ten Trading Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than two Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such the Registration Statement and whenever the Commission comments in writing on such the Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and request in connection with resales by the Holder of Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(hg) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, howeverPROVIDED, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in person thereof that has voting and dispositive control over the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)Shares.
Appears in 1 contract
Registration Procedures. In connection with If and whenever the Company’s Company is required to affect the registration obligations hereunderof any Registrable Securities under the terms herein, the Company shallwill:
(a) Prepare intentionally omitted;
(b) prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if with respect to such form is not available securities and use its best efforts to the Company on another form appropriate for cause such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.;
(i) Prepare prepare and file with the Commission such amendments, including post-post- effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; , (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; 424, (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; thereto, and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act Act, with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance with (subject to the terms of this Agreement) the intended methods of disposition by the Holders each seller of Registrable Securities thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.;
(cd) Notify the Holders furnish to each seller of Registrable Securities and to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to each underwriter such number of copies of the Registration Statement is proposed and the Prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the intended disposition of the Registrable Securities covered by such Registration Statement;
(e) if during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file an additional Registration Statement covering such ineligible Registrable Securities, as provided herein, and shall use its best efforts to cause such Registration Statement to be filed declared effective by the Commission as soon as reasonably practicable;
(but in no event f) use its commercially reasonable efforts (i) to register or qualify the Registrable Securities covered by such Registration Statement under the state securities or “blue sky” laws of such jurisdictions as the sellers of Registrable Securities or, in the case of this subparagraph an underwritten public offering, the managing underwriter, reasonably shall request, (ii) to prepare and file in those jurisdictions such amendments (including post-effective amendments) and supplements, and take such other actions, as may be necessary to maintain such registration and qualification in effect at all times for the period of distribution contemplated thereby and (iii) to take such further action as may be necessary or advisable to enable the disposition of the Registrable Securities in such jurisdictions, provided, that the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction;
(g) use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement with any securities exchange on which the common stock of the Company is then listed;
(h) immediately notify each seller of Registrable Securities and each underwriter under such Registration Statement, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event of which the Company has knowledge as a result of which the Prospectus contained in such Registration Statement, as then in effect, includes any 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 promptly amend or supplement such Registration Statement to correct any such untrue statement or omission;
(i) if the offering is an underwritten offering, enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as are usual and customary in the securities business for such an arrangement between such underwriter and companies of the Company’s size and investment stature, including, without limitation, customary indemnification and contribution provisions;
(j) if the offering is an underwritten offering, at the request of any seller of Registrable Securities, furnish to such underwriter on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such registration: (i) a copy of an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such Registration Statement has become effective under the Securities Act and that (A), less than three (3) Business Days prior to date the knowledge of such filing); counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; , the related Prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial or statistical information contained therein) and (C) with respect to such other effects as reasonably may be requested by counsel for the underwriters; and (ii) a copy of a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent registered public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement or the Prospectus, or any post-effective amendmentamendment or supplement thereof, when comply as to form in all material respects with the same has become effective applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (which notice shall be delivered including information as to the Purchasers and Special Counsel on period ending no more than five (5) business days prior to the same day date of such letter) with respect to such registration as such effectiveness), and after the effectiveness thereof: underwriters reasonably may request;
(ik) promptly notify each seller of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) Registrable Securities of the issuance by the Commission 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 proceedings for that purpose; (iii) of purpose and make every reasonable effort to prevent the receipt by the Company issuance 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreementstop order and, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if stop order is issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, lifting thereof at the earliest practicable moment.possible time;
(el) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company take all actions reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates (not bearing any legend restricting the sale or transfer of such securities) representing the Registrable Securities to be sold pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, Statement and to enable such Registrable Securities certificates to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares each seller of Registrable Securities under or any underwriters may reasonably request; and
(m) take all other reasonable actions necessary to expedite and facilitate the registration of the Registrable Securities pursuant to the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with If and whenever the Company’s Company is required to effect the offering or registration obligations hereunderof any Registrable Securities under the Securities Act as provided in Sections 2.1 and 2.2, the Company shallwill, as expeditiously as possible:
(ai) Prepare prepare and (within 90 days of the request or in any event as soon thereafter as practicable) file with the Commission on or prior to the Filing Deadline, a requisite Registration Statement on Form S-3 (or if such form is not available Prospectus or supplement to the Company on another form appropriate for effect such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), or offering and thereafter use its reasonable best efforts to cause the such Registration Statement to become effective and remain effective as provided hereineffective; providedPROVIDED, howeverHOWEVER, that the Company may discontinue any registration of its securities that are not less than three Registrable Securities (3and, under the circumstances specified in Section 2.2(a), its securities that are Registrable Securities) Business Days at any time prior to the filing effective date of the Registration Statement relating thereto; PROVIDED, HOWEVER, that before filing a Registration Statement or any related Prospectus or any amendment amendments or supplement supplements thereto, other than deemed amendments resulting from filing documents that are incorporated by reference, the Company shall (i) will furnish to one counsel for the Special Counsel, holders of the Registrable Securities covered by such Registration Statement copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) and will be subject to the review of provide such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning period of the Securities Acttime to review and comment on such documents. The Company shall will not file the any such Registration Statement or amendment thereto or any such Prospectus or any amendments or supplements supplement thereto to which the Holders holders of a majority of the Registrable Securities or the Special Counsel covered by such Registration Statement shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.on a timely basis;
(iii) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order amendments and supplements to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the such Registration Statement or any amendment thereto and the Prospectus used in connection therewith as promptly as possible provide the Holders true and complete copies of all correspondence from may be necessary to keep such Registration Statement effective and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the such Registration Statement during until the applicable period earlier of (a) such time as all of such Registrable Securities have been disposed of in accordance with the intended methods of disposition by the Holders seller or sellers thereof set forth in such Registration Statement; or (b) such time as all of the Registration Statement as so amended or in such Prospectus as so supplemented.Registrable Securities cease to be Registrable Securities;
(ciii) Notify the Holders furnish to each seller of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the covered by such Registration Statement is proposed to be filed (but in no event in the case Statement, such number of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” conformed copies of such Registration Statement and whenever the Commission comments of each such amendment and supplement thereto (in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectivenesseach case including all exhibits), and after the effectiveness thereof: (i) such number of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses contained in such Registration Statement (including each form of preliminary Prospectus and any summary prospectus) and each amendment or supplement thereto any other prospectus filed under Rule 424 under the Securities Act, in conformity with the requirements of the Securities Act, and such other documents, as such Persons seller may reasonably request; ;
(iv) use its reasonable best efforts (x) to register or qualify all Registrable Securities and the Company hereby consents to the use other securities covered by such Registration Statement under such other securities or blue sky laws of such Prospectus and each amendment or supplement thereto by each States of the selling Holders in connection with United States of America where an exemption is not available and as the offering and sale sellers of a majority of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
Registration Statement shall reasonably request, (hy) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification in effect for so long as such Registration Statement remains in effect and (or exemption therefromz) effective during the Effectiveness Period and to do take any and all other acts or things action that may be reasonably necessary or advisable to enable such sellers to consummate the disposition in such jurisdictions of the Registrable Securities covered securities to be sold by a Registration Statement; providedsuch sellers, however, 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 wherein it is would not then but for the requirements of this subdivision (iv) be obligated to be so qualified or to take any action that would subject it consent to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.jurisdiction;
(iv) Cooperate with the Holders use its reasonable best efforts to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to covered by such Registration Statement to be listed on registered with or approved by such other federal or state governmental agencies or authorities as may be necessary in the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations opinion of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish counsel to the Company information regarding such Holder and counsel to the distribution seller or sellers of such Registrable Securities as is required by law to enable the seller or sellers thereof to consummate the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.Securities;
(nvi) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest case of an Underwritten Offering, furnish at the appropriate time to disclose each seller of Registrable Securities, and which the Company is not otherwise required to discloseeach such seller's underwriters, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (eachif any, a “Blackout Period”).signed counterpart of:
Appears in 1 contract
Samples: Registration Rights Agreement (1818 Fund Lp Brown Brothers Harriman Co Long T Michael Et Al)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing DeadlineDate, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; ;
(ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness)effective, and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (iSections 3(c)(C)(i), 3(c)(C)(ii), 3(c)(C)(iii) through (ivor 3(c)(C)(iv) of Section 3(c)(C) occursoccur, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(C)(iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on NASDAQ and any other United States securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which similar securities issued by the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock MarketCompany are then listed.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration StatementStatement by sending to each selling Holder a Selling Shareholder Questionnaire, the form of which is attached as Exhibit B, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i3(c)(C)(i), 3(c)(ii3(c)(C)(ii), 3(c)(iii3(c)(C)(iii), 3(c)(iv3(c)(C)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s 's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “"Advice”") by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s 's Board of Directors (the “"Board”") reasonably determines not to be in the Company’s 's best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s 's best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 45 days in the aggregate during any 12 month period (each, a “"Blackout Period”").
Appears in 1 contract
Registration Procedures. In connection with the Company’s Pubco's registration obligations hereunder, the Company Pubco shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, Holders' Representative copies of all such documents substantially in the form proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the review of such Special Counselthe Holders' Representative, and (ii) at subject, if appropriate, to the request execution of any Holder confidentiality agreements in form acceptable to Pubco, cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare and file with the Commission SEC such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; and (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably practicable to any comments received from the Commission SEC with respect to the Registration Statement or any amendment thereto and and, as promptly as possible reasonably practicable, upon request, provide the Holders Holders' Representative true and complete copies of all correspondence from and to the Commission SEC relating to the Registration Statement; and Statement (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect subject, if appropriate, to the disposition execution of all Registrable Securities covered by the Registration Statement during the applicable period confidentiality agreements in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplementedform acceptable to Pubco).
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three (3) Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission SEC notifies the Company Pubco whether there will be a “"review” " of such the Registration Statement and whenever the Commission SEC comments in writing on such the Registration StatementStatement (Pubco shall upon request provide true and complete copies thereof and all written responses thereto to the Holders' Representative, subject, if appropriate, to the execution of confidentiality agreements in form acceptable to Pubco); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission SEC or any other Federal federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) 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; (iiiiv) of the receipt by the Company Pubco 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and no later than five (5) business days after the Special CounselEffectiveness Date, without charge, as many two (2) copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto (and, upon the request of the Holder such additional copies as such Persons may reasonably request; and request in connection with resales by the Company Holder of Registrable Securities). Pubco hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to SECTION 3(c)(ii)-(v).
(hf) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such the registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; providedPROVIDED, howeverHOWEVER, that the Company Pubco 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 that would qualified, subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company Pubco to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ig) Cooperate If requested by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Subscription Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(jh) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (ivSECTION 3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ki) Cause all Registrable Securities relating Use its reasonable commercial efforts to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply comply in all material respects with all applicable rules and regulations of the Commission SEC relating to the registration of the Registrable Securities pursuant to the Registration Statement or otherwise.
(j) Pubco shall not be required to include in any Registration Statement the Registrable Securities of any Holder that does not complete a Selling Shareholder Questionnaire.
(k) Pubco shall use its commercially reasonable efforts to maintain at least two (2) market makers that are registered with the National Association of Securities Dealers, Inc. as such with respect to the Registrable Securities. Pubco shall pay all fees and expenses in connection with satisfying its obligation under this SECTION 3(k).
(l) Pubco shall make all documents, files, books, records, officers, directors and employees of Pubco reasonably available to the Holders' Representative, one legal counsel to the Holders and one firm of accountants retained by the Holders (collectively, the "INSPECTORS"), and make such other accommodations as are reasonably necessary for the Inspectors, if any, to perform a due diligence review of Pubco; PROVIDED, HOWEVER, that all such information ("CONFIDENTIAL INFORMATION") will be kept confidential and not utilized by the Inspectors except as contemplated herein and except as required by law or court order. The term Confidential Information also includes any information included in a draft Registration Statement or any related Prospectus or any amendment or supplement thereto provided to a Holder pursuant to SECTION 3(a); for the avoidance of doubt, however, Pubco shall not furnish to Holders, without their prior approval, any information that constitutes or might constitute material, non-public information. The term Confidential Information does not include information that (a) is already in possession of such other party (other than that which is subject to another confidentiality agreement or unless obtained from a third party where the receiving party knows that the third party was subject to a confidentiality agreement), (b) becomes generally available to its security holders earnings statements satisfying the provisions public other than by disclosure in violation of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of this Agreement or any 3-month period (or 90 days after the end of any 12-month period if such period other agreement to which a Holder is a fiscal yearparty, or (c) commencing becomes available on a non-confidential basis from a source other than Pubco unless obtained from a third party where the first day receiving party knows that the third party was subject to a confidentiality agreement. Each Holder agrees that it shall, upon learning that disclosure of such Confidential Information is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to Pubco and allow Pubco, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158information deemed confidential.
(m) Request each selling Pubco shall hold in confidence and not make any disclosure of information concerning any Holder provided to furnish Pubco unless (a) such information is already in possession of Pubco, (b) such information becomes available to Pubco on a non-confidential basis from a person other than such Holder who is not known by Pubco to be otherwise bound by a confidentiality or comparable agreement with such Holder, (c) disclosure of such information is necessary to comply with federal or state securities laws, (d) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement or Prospectus, (e) the 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, (f) such information has been made generally available to the Company information regarding public other than by disclosure in violation of this Agreement or any other agreement to which Pubco is a party, or (g) such Holder consents to the form and content of any such disclosure (the distribution Holders shall be deemed to consent to the inclusion of such Registrable Securities as is required by law or any information provided in the Commission to be disclosed Selling Shareholder Questionnaire, in the Registration Statement, any Prospectus related thereto, and the Company may exclude from such registration the Registrable Securities any amendments or supplements thereto). Pubco agrees that it shall, upon learning that disclosure of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to concerning any Holder is sought in or by name a court or otherwise as the holder governmental body of any securities of the Companycompetent jurisdiction or through other means, then such Holder shall have the right to require (if such reference give prompt written notice to such Holder by name and allow such Holder, at the Holder's expense, to undertake appropriate action to prevent disclosure of, or otherwise is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of obtain a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n)protective order for, such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementinformation.
(n) If (i) there is material non-public information regarding Pubco covenants that it shall file the Company which the Company’s Board of Directors (the “Board”) reasonably determines not reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder so long as the Holder owns any Registrable Securities, but in no event longer than two (2) years; PROVIDED, HOWEVER, Pubco may delay any such filing but only pursuant to Rule 12b-25 under the Company’s best interest Exchange Act, and Pubco shall use commercially reasonable efforts to disclose and which take such further action as any Holder of Registrable Securities may reasonably request, all to the Company is not otherwise extent required from time to disclosetime to enable such Holder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (a) Rule 144 under the Securities Act, or (iib) there is any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Holder of Registrable Securities, Pubco will deliver to such Holder a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available written statement as to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)whether it has complied with such requirements.
Appears in 1 contract
Samples: Registration Rights Agreement (Lighten Up Enterprises International Inc)
Registration Procedures. In connection with Whenever any Holder has requested that any Registrable Securities be registered pursuant to this Annex A, the Company’s Company will use its reasonable best efforts to effect the registration obligations hereunder, of such Registrable Securities and in furtherance thereof the Company shall:
(a) Prepare prepare and file with the Commission on or prior any appropriate form under the Securities Act with respect to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available Registrable Securities and use its commercially reasonable efforts to the Company on another form appropriate for cause such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.effective;
(ib) Prepare prepare and file with the Commission such amendments, including post-effective amendments, amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for a period of not less than 180 days (or such lesser period as is necessary for the Effectiveness Period underwriters in an underwritten offering to sell unsold allotments) and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, possible to any comments received from the Commission with respect to the Registration Statement Statements or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration StatementStatements; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement Statements during the applicable period in accordance with the intended methods of disposition by the Holders Stockholders thereof set forth in the Registration Statement Statements as so amended or in such Prospectus as so supplemented.;
(ci) Notify furnish to the Holders of Registrable Securities to be sold sold, their counsel and any managing underwriters, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the Special Counsel review of such Stockholders, their counsel and such managing underwriters, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders and such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement to which the holder of a majority of the Registrable Securities or its counsel or any managing underwriters shall reasonably object in writing within three (3) Business Days of their receipt thereof;
(d) notify the Holders of Registrable Securities to be sold, their counsel and any managing underwriters as promptly as possible (Aand in the case of (i), below, not less than five (5) days prior to such filing) and confirm such notice in writing no later than one (1) Business Day following the day:
(i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement Statements is proposed to be filed filed;
(but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (Bii) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement Statements and whenever the Commission comments in writing on such Registration Statement; and Statements;
(Ciii) with respect to the Registration Statement Statements or any post-effective amendment, when the same has become effective effective;
(which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiv) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement Statements or Prospectus Pro spectus or for additional information; ;
(iiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statements covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; ;
(iiivi) if at any time any of the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects;
(vii) 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 and
(ivviii) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement Statements or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration StatementStatements, Prospectus or other documents so that, in the case of the Registration Statement Statements or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.;
(de) Use use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statements or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.;
(ef) If if requested by any Holder of Registrable Securitiesmanaging underwriter to be sold in connection with an Underwritten Offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(eclause (f) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel)Company, violate applicable law.law or be materially detrimental to the business prospects of the Company;
(fg) Furnish furnish to each Holder of Registrable Securities to be sold, their counsel and the Special Counselany managing underwriters, without charge, at least one conformed copy of each Registration Statement Statements and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.;
(gh) Promptly promptly deliver to each Holder of Registrable Securities to be sold, their counsel, and the Special Counselany underwriters, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Stockholders and any underwriters in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.;
(hi) Prior prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Holders, any underwriters and the Special Counsel their 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 laws of such jurisdictions within the United States as any selling Holder or underwriter requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period for at least 180 days and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.;
(ij) Cooperate cooperate with the selling Holders and any managing underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration StatementStatements, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreementlaw, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such managing underwriters or Stockholders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.;
(jk) Upon upon the occurrence of any event contemplated by Section 3(c)(C)(iii4(d)(viii) or (iv)of this Annex A, as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement Statements nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(kl) Cause use its best efforts to cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchangesecurities exchange, quotation system, market or over-the-counter bulletin board on which similar securities issued by the Company are then listed;
(m) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including those reasonably requested by any managing underwriters in order to expedite or facilitate the disposition of such Registrable Securities, and whether or not an underwriting agreement is entered into):
(i) make such representations and warranties to such selling Holders and such underwriters as are customarily made by issuers to underwriters in underwritten public offerings, and confirm the same if and when requested;
(ii) in the case of an Underwritten Offering, obtain and deliver copies thereof to the managing underwriters, if any, of opinions of counsel to the Company and updates thereof addressed to each such underwriter, in form, scope and substance reasonably satisfactory to any such managing underwriters and counsel to the selling Stockholders covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such counsel and underwriters;
(iii) immediately prior to the effectiveness of the Registration Statement, and, in the case of an Underwritten Offering, at the time of delivery of any Registrable Securities sold pursuant thereto, obtain and deliver copies to the selling Holders and the managing underwriters, if any, of "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent 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 Statements), addressed to each selling Holder and each of the underwriters, if any, in form and substance as are customary in connection with Underwritten Offerings;
(iv) if an underwriting agreement is entered into, the American Stock Exchange same shall contain indemnification provisions and procedures no less favorable to the selling Holders and the underwriters, if any, other than those set forth in Section 8 of this Annex A (or such other provisions and procedures acceptable to the Nasdaq Stock Market.managing underwriters, if any; and
(lv) Comply deliver such documents and certificates as may be reasonably requested by the selling Holders, their counsel and any managing underwriters to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company;
(n) make available for inspection by the selling Holders, any representative of such Holders, any underwriter participating in any disposition of Registrable Securities, and any attorney or accountant retained by such selling Holder or underwriters, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors, agents and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Holder, representative, underwriter, attorney or accountant in connection with the Registration Statements; provided, however, that any information that is determined in good faith by the Company in writing to be of a confidential nature at the time of delivery of such information shall be kept confidential by such Persons, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities; (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law; (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person; or (iv) such information becomes available to such Person from a source other than the Company and such source is not known by such Person to be bound by a confidentiality agreement with the Company;
(o) comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) 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 and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration StatementStatements, which statement shall conform to the requirements of Rule 158.;
(mp) Request the Company may require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration StatementStatements, and the Company may exclude from such registration the Registrable Securities of any such Holder Stockholder who unreasonably fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statementafter receiving such request. If the Registration Statement Statements refers to any Holder Stockholder by name or otherwise as the holder of any securities of the Company, then such Holder Stockholder shall have the right to require (if such reference to such Holder Stockholder by name or otherwise is not required by the Securities Act or any similar federal Federal statute then in force) the deletion of the reference to such Holder Stockholder in any amendment or supplement to the Registration Statement Statements filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause Cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holderseach Holder, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto Each Holder agrees to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel furnish to the Company determines a completed questionnaire in writing that such objection is without meritthe form attached to this Agreement as Annex B prior to the filing of the Registration Statement.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statementthereto; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.
(d) Notify the Holders of Registrable Securities to be sold and (which notice shall, pursuant to clauses (i) through (iv) hereof, be accompanied by an instruction to suspend the Special Counsel use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible and (Aif requested by any such Person) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of confirm such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments notice in writing on such Registration Statement; and (C) with respect to no later than one Trading Day following the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiii) 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 (iviii) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through ; and (iv) of Section 3(c)(C) occurs, the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus, provided that any and all of such information shall use its best efforts remain confidential to respond each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, that notwithstanding each Holder’s agreement to and correct the eventkeep such information confidential, each such Holder makes no acknowledgement that any such information is material, non-public information.
(de) Use its best reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order stopping or suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that any such item which is available on the XXXXX system need not be furnished in physical form.
(g) Promptly deliver Subject to each Holder and the Special Counselterms of this Agreement, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a each Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(i) Cooperate If requested by a Holder, cooperate with the such Holders 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, to the extent permitted by applicable law and the Purchase Subscription Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii3(d) or (iv), as promptly as possiblereasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (i) through (iv) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(j) to suspend the availability of a Registration Statement and Prospectus.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(ml) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in natural persons thereof that have voting and dispositive control over the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)shares.
Appears in 1 contract
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Holders and their Special Counsel, Counsel copies of all such documents proposed to be filed, filed which documents (other than those incorporated by reference) will be subject to the review of such Holders and their Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the and their Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business within ten Trading Days, to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the their Special Counsel in writing as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing): (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the their Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and statements, schedules, and all exhibits and, to the extent requested by such Person (including those previously furnished Holder, all documents and exhibits incorporated or deemed to be incorporated therein by reference) reference promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the their Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the their Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(ih) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required requested by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)controlling person thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Level 8 Systems Inc)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to the Special Counsel, Lead Purchasers and Purchaser Counsel copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Special Lead Purchasers and Purchaser Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holdersrespective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of Purchasers holding a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Trading Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritof receipt.
(i) Prepare Subject to Section 6.1(f), prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business within 12 Trading Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders Purchasers true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Purchasers thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders Purchasers of Registrable Securities to be sold and the Special Purchaser Counsel as promptly as possible reasonably possible, and (Aif requested by any such Person) when a Prospectus or confirm such notice in writing no later than one Trading Day thereafter, of any Prospectus supplement or post-effective amendment to of the Registration Statement is proposed to be filed following events: (but in no event in the case of this subparagraph (A), less than three (3i) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “"review” " of such any Registration Statement and whenever Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to each Purchaser a copy of such Registration Statementcomments and of all written responses thereto); and (Ciii) with respect to the any Registration Statement or any post-effective amendment, when the same has become effective amendment is declared effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiv) of any request by the Commission or any other Federal or state governmental authority for amendments requests any amendment or supplements supplement to the any Registration Statement or Prospectus or for requests additional informationinformation related thereto; (iiv) of the issuance by the Commission of issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiivi) of the receipt by the Company receives notice 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 threat of any Proceeding for such purpose; and or (ivvii) if the financial statements included in the any Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or that requires any revisions revision to the a Registration Statement, Prospectus or other documents document is required so that, in the case of the Registration Statement or the Prospectus, as the case may be, that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas soon as possible.
(e) If requested by any Holder of Registrable Securitiesthe Lead Purchasers, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish furnish to each Holder Lead Purchaser and the Special Purchaser Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder Purchaser and the Special Purchaser Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto to the extent permitted by federal and state securities laws and regulations.
(g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to the Purchasers evidence of such listing; and (iv) except as a result of the Excluded Events, during the Effectiveness Period, maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Purchasers and the Special Purchaser 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 laws of such jurisdictions within the United States as any Holder Purchaser requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required obligated to file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then otherwise so subject.
(i) Cooperate with the Holders Purchasers 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, to the extent permitted by applicable law and the Purchase Agreementthis Agreement under law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Purchasers may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(j) Upon the occurrence of any event contemplated by described in Section 3(c)(C)(iii) or (iv6.2(c)(vii), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Cooperate with any due diligence investigation undertaken by the Purchasers in connection with the sale of Registrable Securities relating Securities, including, without limitation, by making available any documents and information; provided that the Company will not deliver or make available to any Purchaser material, nonpublic information unless such Registration Statement Purchaser specifically requests in advance to be listed on the New York Stock Exchangereceive material, the American Stock Exchange or the Nasdaq Stock Marketnonpublic information in writing.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Securities Purchase Agreement (Central European Distribution Corp)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Holders and their Special Counsel, Counsel copies of all such documents proposed to be filed, which filed (including documents (other than those incorporated or deemed incorporated by reference) which documents will be subject to the review of such Holders and their Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the and their Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin ten days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the their Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-post- effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the their Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the their Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the their Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the -------- Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(ih) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required requested by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)controlling person thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Act Teleconferencing Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the each Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall shall, (i) furnish to the Special Counsel, each Holder copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing within three (3) Business no later than 3 Trading Days after their receipt thereof, unless counsel to the Company determines in writing that Holders have been so furnished copies of such objection is without meritdocuments.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than within 10 Business Trading Days, to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than 150% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable Securities to be sold and (which notice shall, pursuant to clauses (ii) through (vi) hereof, shall be accompanied by an instruction to suspend the Special Counsel use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation ; and (vi) the occurrence or existence of any pending corporate development with respect to any remedies to which the Holders Company that the Company believes may be entitled under this Agreementmaterial and that, if any in the determination of the events described Company, makes it not in clauses (i) through (iv) the best interest of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of allow continued availability or the Registration Statement or (ii) Prospectus; provided that any suspension and all of such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; provided, further, notwithstanding each Holder’s agreement to keep such information confidential, the qualification (or exemption from qualification) of Holders make no acknowledgement that any of the Registrable Securities for sale in any jurisdictionsuch information is material, at the earliest practicable momentnon-public information.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and . Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any public offering of Registrable Securities, use its best Use commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) resale of such Registrable Securities for offer and sale as required under the applicable securities or Blue Sky laws of such jurisdictions each State within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration StatementPeriod; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(ig) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(jh) Upon the occurrence of any event contemplated by this Section 3(c)(C)(iii) or (iv)3, as promptly as possiblereasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (vi) of Section 3(d) above to suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of a Registration Statement and Prospectus, subject to the payment of liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) (90 days if such suspension is directly and solely related to pending disclosure of a completed acquisition) in any 12 month period.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(li) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available Commission.
(j) Use its reasonable best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a(i) any order suspending the effectiveness of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to or (ii) any suspension of the requirements qualification (or exemption from qualification) of Rule 158any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(mk) Request The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each selling Holder to furnish to the Company information regarding a statement as to the number of shares of Common Stock beneficially owned by such Holder and and, if requested by the distribution Commission, the controlling person thereof, within three Trading days of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and Company’s request. During any periods that the Company may exclude from such is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities of solely because any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities three Trading Days of the Company’s request, then any liquidated damages that are accruing at such Holder time shall have the right to require (if be tolled and any Event that may otherwise occur solely because of such reference to delay shall be suspended, until such Holder by name or otherwise information is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement delivered to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementCompany.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Paincare Holdings Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three one (31) Business Days Trading Day prior to the filing of the each Registration Statement or and any related Prospectus or any amendment or supplement theretoProspectus, the Company shall (i) furnish to the Special Counsel, each Holder copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified registered public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holderseach Holder, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto Each Holder agrees to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel furnish to the Company determines in writing a completed questionnaire (a “Selling Stockholder Questionnaire”) on a date that such objection is without meritnot less than two (2) Trading Days prior to the Filing Date.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; , (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; 424, (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and upon written request by a Holder, provide as promptly as reasonably possible provide to the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Registration Statement; Company shall excise any information contained therein which would constitute material non-public information regarding the Company or any of its Subsidiaries), and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.
(d) Notify the Holders of Registrable Securities to be sold and (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the Special Counsel use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; , and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; , (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; , (iiiiv) 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 , (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation , and (vi) of the occurrence or existence of any pending corporate development with respect to any remedies to which the Holders Company that the Company believes may be entitled under this Agreementmaterial and that, if any in the determination of the events described Company, makes it not in clauses (i) through (iv) the best interest of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the eventallow continued availability of a Registration Statement or Prospectus.
(de) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order stopping or suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission, provided that any such item which is available on the EXXXX system (or successor thereto) need not be furnished in physical form.
(g) Promptly deliver Subject to each Holder and the Special Counselterms of this Agreement, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(h) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such the registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a each Registration Statement; provided, however, provided that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(i) Cooperate If requested by a Holder, cooperate with the Holders such 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(d), as promptly as possiblereasonably possible under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(j) to suspend the availability of a Registration Statement and Prospectus, for a period not to exceed 60 calendar days (which need not be consecutive days) in any 12-month period.
(k) Cause all Registrable Securities relating Otherwise use commercially reasonable efforts to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects comply with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of under the Securities Act and the Exchange Act, including, without limitation, Rule 158 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders in writing if, at any time during the Effectiveness Period, the Company does not later than 45 days after satisfy the end conditions specified in Rule 172 and, as a result thereof, the Holders are required to deliver a Prospectus in connection with any disposition of any 3-month period Registrable Securities and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder.
(l) Once the Company becomes eligible to register the resale of the Registrable Securities on Form S-3, the Company shall use its best efforts to maintain eligibility for use of Form S-3 (or 90 days after any successor form thereto) for the end of any 12-month period if such period is a fiscal year) commencing on the first day registration of the first fiscal quarter resale of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Registrable Securities.
(m) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in natural persons thereof that have voting and dispositive control over the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)shares.
Appears in 1 contract
Samples: Registration Rights Agreement (Prairie Operating Co.)
Registration Procedures. In connection with the Company’s registration obligations hereunderfiling of any Registration Statement or Registration Statements pursuant to Section 2 hereof, the Company and the Guarantor shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company or the Guarantor hereunder the Company and the Guarantor shall:
(a) Prepare and file with the Commission SEC on or prior to the Filing DeadlineDate, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)Registration Statements as prescribed by Section 2 hereof, and use their reasonable best efforts to cause the each such Registration Statement Statement(s) to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the before filing of the any Registration Statement or any related Prospectus or any amendment amendments or supplement supplements thereto, the Company and the Guarantor shall (i) furnish to and afford the Special Counsel, Initial Purchaser a reasonable opportunity to review copies of all such documents proposed to be filedfiled (in each case, which documents (other than those incorporated by reference) will be subject to the review of such Special Counselwhere possible, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond least five Business Days prior to such inquiries filing, or such later date as is reasonable under the circumstances). Neither the Company nor the Guarantor shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the any Registration Statement or any such Prospectus or any amendments or supplements thereto to which if the Notice Holders of a majority in Amount of Registrable Securities covered by such Registration Statement or, in the case of the Registrable Securities or Initial Shelf Registration Statement, the Special Counsel Initial Purchaser, shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendmentsamendments to each Shelf Registration, to the Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus to be amended or supplemented by any Prospectus supplement required Prospectus supplementby applicable law, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplementedsupplemented except as provided in Section 3(b).
(c) Notify the Notice Holders of Registrable Securities to be sold and the Special Counsel as Initial Purchaser promptly as possible (Abut in any event within two Business Days), (i) when a Prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective under the Securities Act (which including in such notice shall be delivered to a written statement that any Notice Holder may, upon request, obtain, at the Purchasers and Special Counsel on sole expense of the same day as Company, one conformed copy of such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus post-effective amendment including financial statements and schedules, documents incorporated or for additional information; deemed to be incorporated by reference and exhibits), (ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement covering or of any order preventing or all suspending the use of the Registrable Securities any preliminary Prospectus or the initiation of any Proceedings proceedings for that purpose; , (iii) of the receipt by the Company happening of any notification with respect to event, the suspension of the qualification or exemption from qualification existence of any of the Registrable Securities for sale in condition or any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event information becoming known that makes any statement made in the such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any revisions changes in or amendments or supplements to the such Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement Statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of the Company's determination that a post-effective amendment to a Registration Statement would be appropriate, or (v) that the effectiveness of the Shelf Registration Statement is suspended pursuant to Section 3(c)(C3(b) occurs, the Company shall use its best efforts to respond to and correct the eventhereof.
(d) Use its their reasonable best efforts to avoid prevent the issuance of, orof any order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of a Prospectus and, if any such order is issued, to use its reasonable best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, such order at the earliest practicable possible moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder Notice Holder, a single counsel to such Holders (chosen in accordance with Section 6(b)) and the Special CounselInitial Purchaser at the sole expense of the Company, without charge, at least one conformed copy of each the Registration Statement or Registration Statements and each post-effective amendment thereto, including financial statements and schedules, and, if requested, all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commissionexhibits.
(gf) Promptly deliver Deliver to each Holder Holder, a single counsel to such Holders (chosen in accordance with Section 6(b)) and the Special CounselInitial Purchaser, without chargeat the sole expense of the Company, as many copies of the Prospectus or Prospectuses (including each form of prospectuspreliminary Prospectus) and each amendment or supplement thereto and any documents incorporated by reference therein as such Persons may reasonably request; and, subject to the second paragraph of Section 5 hereof, the Company and the Company Guarantor hereby consents consent to the use of such Prospectus and each amendment or supplement thereto by each of the selling Notice Holders and the Initial Purchaser in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto in the manner set forth therein.
(hg) Prior to any public offering of Registrable Securities, to use its their reasonable best efforts to register or qualify or qualify, to the extent required by applicable law, and to cooperate with the selling Notice Holders and the Special Counsel a single counsel to such Holders (chosen in accordance with Section 6(b)) in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for or offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder requests may reasonably request in writing, to ; keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period period such Registration Statement is required to be kept effective and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the applicable Registration Statement; providedprovided further, however, that neither the Company nor the Guarantor shall not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified or to qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) subject the Company itself to any material tax taxation in excess of a nominal dollar amount in any such jurisdiction where it is not then so subject.
(ih) Cooperate with the Holders each Notice Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statementsold, which certificates shall be free, to the extent permitted not bear any restrictive legends (unless required by applicable law law) and shall be in a form eligible for deposit with the Purchase Agreement, of all restrictive legends, Depository; and to enable such Registrable Securities to be in such denominations and registered in such names as any such Notice Holder may request at least two reasonably request.
(2i) Business Days prior Use their reasonable best efforts to cause the Registrable Securities covered by any sale Shelf Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be reasonably necessary to enable the Notice Holder or Notice Holders thereof to consummate the disposition of such Registrable Securities. In connection therewith, except as may be required solely as a consequence of the nature of such Notice Holder's business, in which case the Company shall promptly after and the effectiveness Guarantor will cooperate in all reasonable respects with the filing of the such Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder granting of such shares of Registrable Securities under the Registration Statementapprovals.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii4(c)(ii), 4(c)(iii) or (iv)4(c)(iv) hereof, as promptly as possiblepracticable prepare and (subject to Section 4(a) hereof) use their reasonable best efforts to file with the SEC, prepare at the expense of the Company and the Guarantor, a supplement or amendment, including a post-effective amendment, amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and or file any other required document so that, as thereafter delivereddelivered to the purchasers of the Registrable Securities being sold thereunder, neither the Registration Statement nor any such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating Prior to such the effective date of the Initial Registration Statement to be listed on Statement, (i) provide the New York Stock Exchange, Trustee with certificates for the American Stock Exchange or Notes in a form eligible for deposit with the Nasdaq Stock MarketDepository and (ii) provide a CUSIP number for the Notes.
(l) Prior to the effective date of the Initial Registration Statement relating to the Underlying Shares, provide a CUSIP number for the Underlying Shares.
(m) Make available for inspection by not more than one representative of selling Notice Holders of such Registrable Securities being sold and one firm of attorneys and one accounting firm (collectively, the "INSPECTORS"), at the offices where normally kept, during reasonable business hours at such time or times as shall be mutually convenient for the Guarantor and the Inspectors as a group, all financial and other records, pertinent corporate documents and instruments of the Guarantor and its subsidiaries (collectively, the "RECORDS") as shall be reasonably necessary to enable Inspectors to exercise any applicable due diligence responsibilities, and cause the officers, directors and employees of the Guarantor and its subsidiaries to supply all information reasonably requested by any such Inspector in connection with such Registration Statement. Records that the Guarantor determines, in good faith, to be confidential and any Records that it notifies the Inspectors are confidential shall not be disclosed by any Inspector unless (i) the disclosure of such Records is necessary to avoid or correct a material misstatement or material omission in such Registration Statement if such Registration Statement is then available, (ii) the release of such Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction, (iii) disclosure of such information is, in the opinion of counsel for the Notice Holders, necessary or advisable in connection with any action, claim, suit or proceeding, directly involving or potentially involving such Notice Holder or their Inspectors and arising out of, based upon, relating to, or involving this Agreement or any transactions contemplated hereby or arising hereunder or (iv) the information in such Records has been made generally available to the public other than through the acts of the Inspectors; provided, however, that prior notice shall be provided as soon as practicable to the Company of the potential disclosure of any information by such Inspector pursuant to clauses (ii) or (iii) of this sentence to permit the Company or the Guarantor to obtain a protective order (or waive the provisions of this Section 4(m)). Each Inspector shall take such actions as are reasonably necessary to protect the confidentiality of such information to the extent such actions are otherwise not inconsistent with, an impairment of or in derogation of the rights and interests of the Holder or any Inspector, unless and until such information in such Records has been made generally available to the public other than as a result of a breach of this Agreement.
(n) Provide (i) the Holders of the Registrable Securities to be included in a Registration Statement and not more than one counsel for all the Holders of such Notes chosen in accordance with Section 6(b), reasonable opportunity to participate in the preparation of a Registration Statement, each Prospectus included therein or filed with the SEC, and each amendment or supplement thereto.
(o) Comply in all material respects with all applicable rules and regulations of the Commission SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not thereunder (or any similar rule promulgated under the Securities Act) for a 12-month period commencing on the first day of the first fiscal quarter of the Guarantor commencing after the effective date of a Registration Statement, which statements shall be made available no later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day year of the first fiscal quarter Guarantor.
(p) Cooperate with each Notice Holder of the Company after Registrable Securities covered by any Registration Statement and their counsel in connection with any filings required to be made with the NASD, including, if the Conduct Rules of the NASD or any successor thereto as amended from time to time so require, engaging a "qualified independent underwriter" ("QIU") as contemplated therein and otherwise applying the provisions of this Agreement to such QIU as though it were a participating underwriter.
(q) Cause the Indenture to be qualified under the TIA not later than the effective date of the first Registration Statement, which statement shall conform Statement relating to the requirements Notes; and in connection therewith, cooperate with the Trustee and the Notice Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of Rule 158the TIA; and execute, and use their reasonable 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 SEC to enable the Indenture to be so qualified in a timely manner.
(mr) Request each selling Holder Use their reasonable best efforts to furnish take all other steps necessary or advisable to effect the Company information regarding such Holder and the distribution registration of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required covered by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementStatements, as contemplated hereby.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Nabors Industries LTD)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior Furnish to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, Holder copies of all such documents proposed to be filedfiled and shall use its reasonable best efforts to reflect in each such document, which documents (other than those incorporated by reference) will be subject to when so filed with the review of Commission, such Special Counsel, comments as any Holder may reasonably propose and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holdersany Holder, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements amendments in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders any Holder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders any Holder thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel any Holder as promptly as possible (Aand, in the case of (i)(A) below, not less than five (5) Business Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Business Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; Statement and (C) with respect to the Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its reasonable best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of the Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form Form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, Promptly use its reasonable best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, free of all restrictive legendslegends when sold or transferred pursuant to the Registration Statement, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least within two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as possible, (i) prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and (ii) advise each Holder as to when they may resume distribution of the Registrable Securities.
(k) Cause Use its reasonable best efforts to maintain the listing of the Common Stock on The Nasdaq SmallCap Market and cause all Registrable Securities relating to such Registration Statement to be listed on The Nasdaq SmallCap Market or any such other securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which the New York Common Stock Exchange, the American Stock Exchange or the Nasdaq Stock Marketis then listed.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s 's Board of Directors (the “Board”"BOARD") reasonably determines not to be in the Company’s 's best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s 's best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness use of a registration statement for a period not to exceed 30 twenty (20) consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 forty-five (45) days in the aggregate during any 12 12-month period; provided, however, that no such suspension shall be permitted for consecutive twenty (20) day periods, arising out of the same set of facts, circumstances or transactions; and provided further, that if the Company decides to suspend its obligation pursuant to this sentence, it shall give written notice of such suspension to each Holder to that effect. If the Company shall give notice of the occurrence of any event of the kind described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv) and 3(c)(v) or of the postponement or suspension of the Registration Statement pursuant to this Section 3(n), then the Effectiveness Period shall be extended by the number of days during such period from and including the date of the giving of such notice to and including the date when each Holder shall have received (each, a “Blackout Period”i) the copies of the supplement or amendment to the Registration Statement contemplated by Section 3(j) (if an amended or supplemental prospectus is required) or (ii) the Advice (as defined below) (if no supplement or amendment to the Registration Statement is required).
(o) Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to them in connection with sales of Registrable Securities pursuant to the Registration Statement. Each Holder further agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder's receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the "ADVICE") by the Company that the use of the applicable Prospectus may be resumed.
Appears in 1 contract
Samples: Registration Rights Agreement (Communication Intelligence Corp)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the Before filing of the any Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto with the SEC, the Company shall (i) furnish to the Special Counsel, Placement Agents and counsel to the Placement Agents copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject filed and use reasonable efforts to reflect in each such document when so filed with the SEC such comments as the Placement Agents and counsel to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as Placement Agents reasonably shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing propose within three (3) Business Days after their receipt thereof, unless of the delivery of such copies to the Placement Agents and counsel to the Company determines in writing that such objection is without meritPlacement Agents.
(ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to for the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included period specified in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities2(a); (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use its reasonable best efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the such Registration Statement during the applicable period Effectiveness Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify As promptly as practicable (i) give notice to the Holders, counsel to the Notice Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) Placement Agents when a any Prospectus, Prospectus or any Prospectus supplement supplement, Registration Statement or post-effective amendment to the a Registration Statement is proposed to be has been filed (but in no event in with the case of this subparagraph (A)SEC and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become been declared effective and (which ii) give notice shall be delivered to the Purchasers Notice Holders, counsel to the Notice Holders and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: Placement Agents (iA) of any request request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the Commission SEC or any other Federal federal or state governmental authority for amendments or supplements to the any Registration Statement or related Prospectus or for additional information; , (iiB) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings proceedings for that purpose; , (iiiC) 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 , (ivD) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of (but not the nature of or details concerning) a Material Event and (E) of the determination by the Company that a post-effective amendment to a Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or as required pursuant to Section 3(i)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use reasonable efforts to obtain the withdrawal of any event order suspending the effectiveness of a Registration Statement or 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.
(e) If reasonably requested by the Placement Agents or any Notice Holder, as promptly as practicable incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement such information as the Placement Agents or such Notice Holder shall, on the basis of an opinion of nationally-recognized counsel experienced in such matters, determine to be required to be included therein and make any required filings of such Prospectus supplement or such post-effective amendment; provided, that makes the Company shall not be required to take any statement made actions under this Section 3(e) that are not, in the reasonable opinion of counsel for the Company, in compliance with applicable law.
(f) As promptly as practicable furnish to each Notice Holder and each of the Placement Agents, without charge, at least one (1) conformed copy of the Registration Statement or Prospectus or and any document amendment thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference untrue and all exhibits (unless requested in any material respect or that requires any revisions writing to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement Company by such Notice Holder or the ProspectusPlacement Agents, as the case may be).
(g) During the Effectiveness Period, deliver to each Notice Holder in connection with any sale of Registrable Securities pursuant to a 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 Notice Holder may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, register or qualify or cooperate with the Notice 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 laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice 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 necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Registration Statement and the related Prospectus; provided, that the Company will not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it will would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any fact (a "Material Event") as a result of which any Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the occurrence or existence of any pending corporate development that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus, (i) in the case of clause (B) above, subject to the next sentence, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation , as thereafter delivered to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any purchasers of the Registrable Securities for sale being sold thereunder, and, in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder case of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement, subject to the Registration Statement such information next sentence, use its reasonable efforts to cause it to be declared effective as the Company reasonably agrees should be included therein promptly as is practicable, and (ii) make all required give notice to the Notice Holders that the availability of the Shelf Registration Statement is suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use reasonable best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the Company, public disclosure of such Prospectus supplement Material Event would not be prejudicial to or such post-effective amendment contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable after thereafter and (z) in the case of clause (C) above, as soon as, in the discretion of the Company, such suspension is no longer appropriate. Notwithstanding the foregoing, in the event the Company has received notification given notice of a Provisional Redemption or Nonconversion Election it shall use its reasonable efforts to ensure the use of the matters Prospectus may be resumed in the case of clause (A), (B) or (C) above as promptly as is practicable. The Company shall be entitled to be incorporated exercise its right under this Section 3(i) to suspend the availability of the Shelf Registration Statement or any Prospectus, without incurring or accruing any obligation to pay liquidated damages pursuant to Section 2(e), for a period not to exceed 60 days in any three-month period or not to exceed an aggregate 90 days in any 12-month period (such period during which the availability of the Registration Statement and any Prospectus supplement is suspended being the "Deferral Period").
(j) If requested in writing in connection with a disposition of Registrable Securities pursuant to a Registration Statement, make reasonably available for inspection during normal business hours by a representative for the Notice Holders of such Registrable Securities and any broker-dealers, attorneys and accountants retained by such Notice Holders, all relevant financial and other records, 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 reasonably available for inspection during normal business hours all relevant information reasonably requested by such representative for the Notice Holders or postany such broker-effective amendmentdealers, 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 first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall not 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 take respond to inquiries of regulatory authorities, (ii) disclosure of such information is required by law (including any action disclosure requirements pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders federal securities laws in connection with the offering and sale filing of any Registration Statement or the Registrable Securities covered use of any Prospectus referred to in this Agreement), (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by any such Prospectus and any amendment person or supplement thereto.
(hiv) Prior such information becomes available to any public offering such person from a source other than the Company and such source is not bound by a confidentiality agreement, and provided further, that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of Registrable Securities, use its best efforts to register or qualify or cooperate with all the selling Notice Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required parties entitled thereto by the transfer agent, which authorize and direct the transfer agent counsel referred to issue such Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by in Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading5.
(k) Cause all Registrable Securities relating Use its reasonable best efforts to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects comply with all applicable rules and regulations of the Commission SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of the a Registration Statement, which statement statements shall conform cover said periods.
(l) In the case of registration of resales of the Notes, cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "TIA"), cooperate with the Trustee and the Notice Holders to effect such changes to the requirements Indenture as may be required for the Indenture to be so qualified in accordance with the terms of Rule 158.the TIA and execute, and use its reasonable 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 SEC to enable the Indenture to be so qualified in a timely manner;
(m) Request Cooperate with each selling Notice Holder to furnish facilitate the timely preparation and delivery of certificates representing Registrable Securities sold or to be sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be in such denominations as are permitted by the Company information regarding Indenture and registered in such names as such Notice Holder and the distribution may request in writing at least two (2) Business Days prior to any sale of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementSecurities.
(n) If Provide a CUSIP number for all Registrable Securities covered by each Registration Statement not later than the effective date of such Registration Statement and provide the Trustee and the transfer agent for the Common Stock with printed certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.
(o) Use its reasonable best efforts to cause the Underlying Common Stock to be listed on any securities exchange or any automated quotation system on which similar securities issued by the Company are then listed, to the extent the Underlying Common Stock satisfies applicable listing requirements;
(p) Provide such information as is required for any filings required to be made with the National Association of Securities Dealers, Inc.
(q) Upon (i) there is material non-public information regarding the Company which filing of the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose Initial Registration Statement and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition effectiveness of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Initial Registration Statement, then announce the Company may postpone or suspend filing or effectiveness of a registration statement for a period not same, in each case by release to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)Reuters Economic Services and Bloomberg Business News.
Appears in 1 contract
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin fifteen days, to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the a Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such a Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of a Registration Statement for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the such Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent reasonably requested by such Person, and all exhibits to the extent reasonably requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the such Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required requested by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)controlling person thereof.
Appears in 1 contract
Registration Procedures. In connection with If and whenever the Company’s Company is required to effect the registration obligations hereunderof any Registrable Securities under the terms herein, the Company shallwill:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three five (35) Business Days business days prior to the filing of the each Registration Statement or and not less than one (1) business day prior to the filing of any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to the Special Counseleach seller of Registrable Securities, copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Special Counselsellers, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified registered public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holderseach seller of Registrable Securities, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not .
(b) prepare and file with the Commission the Registration Statement or any with respect to such Prospectus or any amendments or supplements thereto securities and use its best efforts to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object cause such Registration Statement to become effective in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.an expeditious manner;
(i) Prepare prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; , (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; 424, (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the staff of the Commission with respect to the a Registration Statement or any amendment thereto and provide as promptly as reasonably possible provide the Holders to each seller of Registrable Securities true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Registration Statement; Company shall excise any information contained therein which would constitute material non-public information regarding the Company), and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act Act, with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders each seller of Registrable Securities thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.;
(cd) Notify the Holders furnish to each seller of Registrable Securities and to each underwriter such number of copies of the Registration Statement and the Prospectus included therein (including each preliminary prospectus) as such persons reasonably may request in order to facilitate the intended disposition of the Registrable Securities covered by such Registration Statement;
(e) if during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file an additional Registration Statement covering such ineligible Registrable Securities, on a pro-rata basis, within 60 days of the date such securities become eligible for registration, which date shall be determined by the Commission, and shall use its best efforts to cause such Registration Statement to be sold declared effective by the Commission as soon as reasonably practicable;
(f) use its commercially reasonable efforts to list the Registrable Securities covered by such Registration Statement with any securities exchange on which the common stock of the Company is then listed;
(g) immediately notify each seller of Registrable Securities and each underwriter under such Registration Statement, at any time when a Prospectus relating thereto is required to be delivered under the Special Counsel Securities Act, of the happening of any event of which the Company has knowledge as a result of which the Prospectus contained in such Registration Statement, as then in effect, includes any 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 promptly amend or supplement such Registration Statement to correct any such untrue statement or omission;
(h) if the offering is an underwritten offering, enter into a written agreement with the managing underwriter selected in the manner herein provided in such form and containing such provisions as possible are usual and customary in the securities business for such an arrangement between such underwriter and companies of the Company’s size and investment stature, including, without limitation, customary indemnification and contribution provisions;
(i) if the offering is an underwritten offering, at the request of any seller of Registrable Securities, furnish to such seller on the date that Registrable Securities are delivered to the underwriters for sale pursuant to such registration: (i) a copy of an opinion, dated such date, of counsel representing the Company for the purposes of such registration, addressed to the underwriters, stating that such Registration Statement has become effective under the Securities Act and that (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date knowledge of such filing); counsel, no stop order suspending the effectiveness thereof has been issued and no proceedings for that purpose have been instituted or are pending or contemplated under the Securities Act, (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; , the related Prospectus and each amendment or supplement thereof comply as to form in all material respects with the requirements of the Securities Act (except that such counsel need not express any opinion as to financial statements or other financial or statistical information contained therein) and (C) with respect to such other effects as reasonably may be requested by counsel for the underwriters; and (ii) a copy of a letter dated such date from the independent public accountants retained by the Company, addressed to the underwriters, stating that they are independent registered public accountants within the meaning of the Securities Act and that, in the opinion of such accountants, the financial statements of the Company included in the Registration Statement or the Prospectus, or any post-effective amendmentamendment or supplement thereof, when comply as to form in all material respects with the same has become effective applicable accounting requirements of the Securities Act, and such letter shall additionally cover such other financial matters (which notice shall be delivered including information as to the Purchasers and Special Counsel on period ending no more than five business days prior to the same day date of such letter) with respect to such registration as such effectiveness), and after the effectiveness thereof: underwriters reasonably may request;
(ij) promptly notify each seller of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) Registrable Securities of the issuance by the Commission 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 proceedings for that purpose; (iii) of purpose and make every reasonable effort to prevent the receipt by the Company issuance 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreementstop order and, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if stop order is issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, lifting thereof at the earliest practicable moment.possible time;
(ek) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company take all actions reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates (not bearing any legend restricting the sale or transfer of such securities) representing the Registrable Securities to be sold pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, Statement and to enable such Registrable Securities certificates to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares each seller of Registrable Securities under or any underwriters may reasonably request; and
(l) take all other reasonable actions necessary to expedite and facilitate the registration of the Registrable Securities pursuant to the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Marathon Patent Group, Inc.)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, SEC a Shelf Registration Statement or Shelf Registration Statements on Form S-1 or S-3 (or if such any other appropriate form is not under the Securities Act available to for the Company on another form appropriate for such registration sale of the Registrable Securities by the Holders thereof in accordance herewith) (which shall include a Plan with the intended method or methods of Distribution substantially in the form of Exhibit A attached hereto)distribution thereof, and use its reasonable best efforts to cause the each such Shelf Registration Statement to become effective and remain effective as provided herein; provided, however, provided that not less than three (3) Business Days prior to the before filing of the any Shelf Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto with the SEC, the Company shall (i) furnish to the Special CounselInitial Purchasers and counsel for the Holders and for the Initial Purchasers (or, if applicable, separate counsel for the Holders) copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject filed and use its reasonable best efforts to reflect in each such document when so filed with the review of SEC such Special Counsel, and (ii) at comments as the request of any Holder cause its officers and directors, such counsel and independent certified public accountants to respond to such inquiries as reasonably shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing propose within three (3) Business Days after their receipt thereof, unless counsel of the delivery of such copies to the Company determines in writing that Initial Purchasers and such objection is without meritcounsel.
(ib) Prepare Subject to Section 3(h) hereof, prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the each Shelf Registration Statement as may be necessary to keep the such Shelf Registration Statement continuously effective as to until the applicable Registrable Securities for expiration of the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use its reasonable best efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the such Shelf Registration Statement during the applicable period Effectiveness Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Shelf Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to the Notice Holders, the Initial Purchasers and counsel for the Holders of Registrable Securities to be sold and for the Special Counsel as promptly as possible Initial Purchasers (Aor, if applicable, separate counsel for the Holders) (i) when a any Prospectus, Prospectus or any Prospectus supplement supplement, Shelf Registration Statement or post-effective amendment to the a Shelf Registration Statement is proposed to be has been filed (but in no event in with the case of this subparagraph (A)SEC and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the a Shelf Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the Commission SEC or any other Federal federal or state governmental authority for amendments or supplements to the any Shelf Registration Statement or related Prospectus or for additional information; , (iiiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Shelf Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings proceedings for that purpose; , (iiiiv) 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 , (ivv) if after the financial statements included in the effective date of any Shelf Registration Statement become ineligible for inclusion therein or filed pursuant to this Agreement of the occurrence of any event (but not the nature of or details concerning) a Material Event and (vi) of the determination by the Company that makes any statement made in the a post-effective amendment to a Shelf Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or Prospectus or any document incorporated or deemed as required pursuant to be incorporated therein by reference untrue in any material respect or Section 3(h)), state that requires any revisions to the Registration Statement, Prospectus or other documents so thatit constitutes a Suspension Notice, in which event the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) provisions of Section 3(c)(C3(h) occurs, the Company shall use its best efforts to respond to and correct the eventapply.
(d) Use its reasonable best efforts to avoid prevent the issuance of, orand, if issued, use best efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of the a Shelf Registration Statement or (ii) the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdictionjurisdiction in which they have been qualified for sale, at in either case as promptly as practicable, and provide prompt notice to each Notice Holder and the earliest practicable momentInitial Purchasers of the withdrawal of any such order.
(e) If requested by any Holder of Registrable Securities, (i) As promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 furnish to be incorporated in such Prospectus supplement or post-effective amendment; providedeach Notice Holder, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company Holders and for the Initial Purchasers (addressed to or, if applicable, separate counsel for the Special Counsel), violate applicable law.
(fHolders) Furnish to each Holder and the Special CounselInitial Purchasers, without charge, at least one (1) conformed copy of each the Shelf Registration Statement and each any amendment thereto, including financial statements and but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits (unless requested in writing to the extent requested Company by such Person (including those previously furnished Notice Holder, such counsel or incorporated by reference) promptly after the filing of such documents with the CommissionInitial Purchasers).
(gf) Promptly During the Effectiveness Period, deliver to each Holder Notice Holder, counsel for the Holders and for the Initial Purchasers (or, if applicable, separate counsel for the Holders) and the Special CounselInitial Purchasers, in connection with any sale of Registrable Securities pursuant to a Shelf Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each form of preliminary prospectus) and each any amendment or supplement thereto as such Persons Notice Holder and the Initial Purchasers 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 such Prospectus and or each amendment or supplement thereto by each of the selling Holders Notice Holder, in connection with the any offering and sale of the Registrable Securities covered by such Prospectus and or any amendment or supplement theretothereto in the manner set forth therein.
(hg) Prior to any public offering of the Registrable SecuritiesSecurities pursuant to the Shelf Registration Statement, use its reasonable best efforts to register or qualify or cooperate with the selling Notice Holders and the Special 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 laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writingwriting (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice 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 a in the manner set forth in the relevant Shelf Registration StatementStatement and the related Prospectus; provided, however, provided that the Company shall will not be required to (i) qualify generally to do business as a foreign corporation or as a dealer in securities 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 that would subject it to general service of process in any jurisdiction where it is not then so subject suits or subject the Company to any material tax taxation in any such jurisdiction where it is not then so subject.
(ih) Cooperate with Upon (A) the Holders to facilitate issuance by the timely preparation and delivery SEC of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (but no later than two days thereafterB) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), the existence of any fact as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the result of which any Shelf Registration Statement or a supplement to the related Prospectus or shall contain any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein 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.
, or (kC) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange occurrence or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end existence of any 3-month period pending corporate development (or 90 days after the end of any 12-month period if such period is a fiscal year"Material Event") commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statementthat, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities discretion of the Company, then such Holder shall have makes it appropriate to suspend the right availability of the Shelf Registration Statement and the related Prospectus, (i) in the case of clause (B) or (C) above, subject to require (the next sentence, as promptly as practicable, prepare and file, if such reference necessary pursuant to applicable law, a post-effective amendment to such Holder by name Shelf Registration Statement or otherwise is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Shelf Registration Statement filed and Prospectus so that such Shelf Registration Statement does not contain any untrue statement of a material fact or prepared subsequent omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that the Company may rely on information provided by each Notice Holder with respect to such Notice Holder), as thereafter delivered to the time that such reference ceases to be required. Each Holder agrees by its acquisition purchasers of such the Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumedbeing sold thereunder, and, in either case, has received copies the case of any additional or supplemental filings that are incorporated or deemed a post-effective amendment to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Shelf Registration Statement, then subject to the Company may postpone or suspend filing or effectiveness of a registration statement for a period not next sentence, use its reasonable best efforts to exceed 30 consecutive dayscause it to be declared effective as promptly as is practicable, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).and
Appears in 1 contract
Samples: Registration Rights Agreement (Electronics for Imaging Inc)
Registration Procedures. i. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, and subject to the Company shall Purchase Agreement (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filedfiled (including documents incorporated or deemed incorporated by reference to the extent requested by such Person and not available on the EDGAR system), which documents (other than those incorporated by reference) will be subject to provided for the review of such Special Counselsxxx Holders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, of the Company to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereofgood faith. Should Holders object, unless all liquidated damages and/or penalties set forth herein shall be waived. For purposes of this paragraph objection by Holders of any disclosure required to be made under Federal Securities laws as determined by Company's counsel shall not be deemed to the Company determines be in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and attempt in no event later than 10 Business good faith to respond within ten Trading Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders its counsel true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplementedStatement.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than five trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such the Registration Statement and whenever the Commission comments in writing on such the Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counselupon request, without charge, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Holder, and all exhibits to the extent requested by such Person Holder (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons Holder may reasonably request; and request in connection with resales by the Holder of Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(hg) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such the registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction (i) where it is not then so qualified or to take any action qualified, (ii) that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or (iii) that would require the Company to file a general consent to service of process in any such jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to so long as such transfers are in compliance with federal and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementstate securities laws.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (v) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus, subject to the payment of liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days).
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, the Person thereof that has voting and dispositive control over the Shares. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this agreement, that each of the Holders shall furnish to the Company the information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementthem specified immediately above, and the Company may exclude from such registration as to the Registrable Securities of any particular Holder, that such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers respond to any Holder by name or otherwise as specific written comments from the holder of any securities of the Company, then such Holder shall have the right to require (if such reference SEC with respect to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment amendment, or not less than one Business Day for any supplement thereto, the Company shall (i) furnish to the Special Counseleach Purchaser and any counsel designated by any Purchaser (each, a "PURCHASER COUNSEL") copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of Purchasers holding a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereofwriting, unless counsel prior to the Company determines in writing that such objection is without meritcontemplated filing date.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 within ten Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, at the request of any Purchaser, as promptly as reasonably possible provide the Holders such Purchaser who may so request true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Purchasers thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders Purchasers of Registrable Securities to be sold and the Special each Purchaser Counsel as promptly as possible reasonably possible, and (Aif requested by any such Person) when a Prospectus or confirm such notice in writing no later than one Business Day thereafter, of any Prospectus supplement or post-effective amendment to of the following events: (i) the initial filing of the Registration Statement is proposed to be filed (but in no event in with the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)Commission; (Bii) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such any Registration Statement; and (Ciii) with respect to the any Registration Statement or any post-effective amendment, when the same has become effective amendment is declared effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiv) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission of issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiiv) of the receipt by the Company receives notice 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 purposeProceeding; and or (ivvi) if the financial statements included in the any Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or that requires any revisions revision to the a Registration Statement, Prospectus or other documents document is required so that, in the case of the Registration Statement or the Prospectus, as the case may be, that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas soon as possible.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder Purchaser and the Special Purchaser Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any public offering (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities, use its best ; (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; and (iii) maintain the listing of such Registrable Securities on each such Trading Market.
(g) Use commercially reasonable efforts to register or qualify or cooperate with the selling Holders Purchasers and the Special respective Purchaser 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 Holder Purchaser reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or consent to take any action that would subject it to general service of process in any jurisdiction where in which it is not then now so subject qualified or subject the Company to any material tax in any such jurisdiction where it is has not then so subjectconsented.
(ih) Cooperate with the Holders Purchasers 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, to the extent permitted by applicable law and the Purchase Agreementlaw, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Purchasers may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by described in Section 3(c)(C)(iii) or (iv6.2(c)(vii), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kj) Cause all Cooperate with any due diligence investigation undertaken by the Purchasers in connection with the sale of Registrable Securities relating Securities, including, without limitation, by making available any documents and information; provided that the Company will not deliver or make available to any Purchaser material, nonpublic information unless such Registration Statement Purchaser specifically requests in advance to be listed on the New York Stock Exchangereceive material, the American Stock Exchange or the Nasdaq Stock Marketnonpublic information in writing.
(lk) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Securities Purchase Agreement (Pico Holdings Inc /New)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business two Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement theretothereto (other than a supplement which attaches a previously filed Exchange Act Report), the Company shall (i) furnish to the Holders and the Special Counsel, Counsel copies of all such documents proposed to be filed, filed which documents (other than those incorporated by reference) will be subject to the review of such Holders and the Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably practical to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as possible reasonably practical provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration StatementStatement (except to the extent such correspondence would disclose material non-public information); and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than two Trading Days following the day (i)(A) when a Prospectus or any Prospectus supplement (other than a supplement which attaches a previously filed Exchange Act Report) or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders, except to the extent such correspondence would disclose material non-public information); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its reasonable best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, as promptly as reasonably possible of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c) to discontinue disposition of Registrable Securities pursuant to the Registration Statement.
(hg) Prior to any public offering of Registrable Securities, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such all jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, PROVIDED that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days in writing a reasonable period of time prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission Commission. In connection with a registration request made by a Holder pursuant to Section 2(a) and make generally available from time to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of time thereafter, the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each may require a selling Holder to furnish to the Company a Registration Statement Questionnaire in the form attached to the Purchase Agreement as Appendix 1, as such form may be revised from time to time by the Company to correspond to information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed Commission. Each Holder shall furnish the information required in a Registration Statement Questionnaire within five Trading Days of the Registration Statement, and Company's request. During any periods that the Company may exclude from such is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities of solely because any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities five Trading Days of the Company's request, then any liquidated or other damages that are accruing at such Holder time shall have the right to require (if be tolled until such reference to such Holder by name or otherwise information is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement delivered to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementCompany.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business two Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Holders and the Special Counsel, Counsel copies of all such documents proposed to be filed, filed which documents (other than those incorporated by reference) will be subject to the review of such Holders and the Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin fifteen (15) days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such all jurisdictions within the United States as any Holder requests in writingStates, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(ih) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder Holder, the controlling person thereof and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities nature of any such Holder who fails position, office or other material relationship (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder other than as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities shareholder of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (Holder has had within the “Board”) reasonably determines not to be in past three years with the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (American Technology Corp /De/)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three two (32) Business Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel good faith. Notwithstanding anything herein to the Company determines in writing that contrary, failure of the Holders to object within two (2) Trading Days of receipt of a proposed filing shall be deemed the Holders' consent to such objection is without meritfiling.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, commercially practicable to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible commercially practicable (Ai)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such the Registration Statement and whenever the Commission comments in writing on such the Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, to the extent requested by such Holder, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after ), in each case as soon as reasonably practicable following such request by the filing of such documents with the CommissionHolder.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and request in connection with resales by the Holder of Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to SECTION 3(c).
(hg) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration of the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, howeverPROVIDED, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (ivSECTION 3(c)(v), as promptly as possiblecommercially practicable, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution Person that has voting and dispositive control over the Shares. Each Holder agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and unless such Holder has notified the Company may in writing of such Holder's election to exclude from all of such registration the Holder's Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Electronic Clearing House Inc)
Registration Procedures. In connection with Whenever KCS is required by the Company’s provisions of this Registration Rights Agreement to use its commercially reasonable efforts to effect the registration obligations hereunderof any Registrable Stock under the Securities Act, the Company shallKCS will:
(aA) Prepare and file (within the period required by Section 2 for all registrations pursuant to such Section) with the Securities and Exchange Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if with respect to such form is not available Registrable Stock and use commercially reasonable efforts to the Company on another form appropriate for cause such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain continuously effective as provided herein; provided, however, that not less than three (3) Business Days prior for a period necessary to effect the filing sale of the Registrable Stock in accordance with the intended method of disposition and the requirements of this Registration Rights Agreement, provided that before filing a Registration Statement or any related Prospectus or any amendment amendments or supplement supplements thereto, the Company shall (i) KCS will furnish to counsel for the Special Counsel, Holders of Registrable Stock included in such Registration Statement copies of all such documents proposed to be filed, which documents (other than those the documents incorporated by referencereference therein) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as counsel. KCS's obligations under this Section 4 shall be necessarysubject to the following:
(i) If, prior to the effectiveness of a Registration Statement relating to Registrable Stock, KCS shall furnish to the Holders a resolution of its Board of Directors stating that KCS has determined in its good faith judgment that the sale of Registrable Stock by such Holders pursuant to the Registration Statement would require disclosure of material non-public information, the current disclosure of which would, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning sole judgment of the Securities Act. The Company shall not Board of Directors of KCS, be materially detrimental to KCS (an "Information Blackout"), then KCS's obligation to file the Registration Statement or any and to use its commercially reasonable efforts to have such Prospectus or any amendments or supplements thereto Registration Statement declared effective shall be deferred for a period not to exceed the earlier of (x) the date upon which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel such material information is disclosed to the Company determines in writing that public or (y) sixty (60) days after the Board of Directors of KCS makes such objection is without meritgood faith determination (such period being the "Information Blackout Period").
(iii) If prior to the effectiveness of a Registration Statement relating to Registrable Stock, KCS shall furnish to the Holders a certificate stating that the Board of Directors of KCS has determined in its good faith judgment that KCS is required to file financial statements with the Securities and Exchange Commission in connection with a material acquisition or other event (a "Financial Statement Blackout"), then KCS's obligation to file the Registration Statement and to use its commercially reasonable efforts to have such Registration Statement declared effective shall be deferred for a period not to exceed the earlier of (x) the date upon which such financial statements are filed with the Securities and Exchange Commission (it being understood that KCS shall use its commercially reasonable efforts to file such financial statements as soon as practicable, or (y) sixty (60) days after KCS makes such good faith determination (such period being the "Financial Statement Blackout Period"). Any such determination shall be accompanied by a certificate or letter from KCS's independent auditors to the effect that such auditors agree that such financial statements are required to be included or incorporated by reference in such Registration Statement to permit such Registration Statement to become effective under the Securities Act or to permit continued sales thereunder, as the case may be.
(iii) If a Registration Statement relating to Registrable Stock is effective, upon written notice of an Information Blackout or Financial Statement Blackout from KCS to the Holders, KCS may request suspension of and the Holders shall suspend sales of Registrable Stock by Holders pursuant to such Registration Statement for the Information Blackout Period or the Financial Statement Blackout Period.
(iv) KCS shall use commercially reasonable efforts to ensure that the aggregate number of days in any period of twelve consecutive months in which an Information Blackout or Financial Statement Blackout or a deferral pursuant to Section 2(D) is in effect shall not be more than ninety (90).
(B) Prepare and file with the Securities and Exchange Commission such amendments, including post-effective amendments, amendments and supplements to the such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement effective for reasons other than a period necessary to effect the failure sale of the Holder to comply with Section 3(m) hereofRegistrable Stock thereunder, which shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from exceed 120 days (or the Commission with respect to period specified in Section 2 in the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies case of all correspondence from a shelf registration) and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities Stock covered by the such Registration Statement during the applicable such period in accordance with the intended method or methods of disposition by the Holders Sellers thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.Statement;
(cC) Notify the Holders Furnish to each Seller such number of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” copies of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; exhibits thereto, each amendment and (C) with respect to supplement thereto, the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document (including each preliminary Prospectus), all documents incorporated by reference or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, and such other documents, as such Seller may reasonably request in order to facilitate the disposition of the Registrable Stock owned by such Seller covered by the Registration Statement in accordance with the intended method of disposition;
(D) Use commercially reasonable efforts to register or qualify the Registrable Stock covered by such Registration Statement under such other securities or blue sky laws of such jurisdictions in the United States of America as each Seller shall reasonably request, to keep such registrations or qualifications in effect for so long as such Registration Statement remains in effect, and do any and all other acts and things which may be necessary under such securities or blue sky laws to enable such Seller to consummate the disposition in such jurisdictions of the Registrable Stock owned by such Seller covered by such Registration Statement (provided, however, that KCS will not be required to (i) in the case may beof a registration pursuant to Section 3, register or qualify such Seller's Registrable Stock in any jurisdiction where shares to be sold by KCS or any other Person initiating such registration are not to be registered or qualified, (ii) qualify generally to do business as a foreign corporation in any jurisdiction where it would not otherwise be required to qualify but for this subparagraph, (iii) subject itself to taxation in any jurisdiction or (iv) consent to general service of process in any jurisdiction);
(E) Notify each Seller, at any time when a Prospectus relating to the Registrable Stock of such Seller covered by such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, contains an untrue statement of a material fact or omits to state any material fact necessary to make the statements therein not misleading in light of the circumstances then existing, and at the request of any such Seller, promptly prepare a supplement or amendment to such Prospectus so that, as thereafter delivered to the purchasers of the Registrable Stock covered by such Registration Statement, such Prospectus will not contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.then existing;
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kF) Cause all Registrable Securities relating to Stock covered by such Registration Statement to be listed on the New York Stock Exchange, principal securities exchange on which Securities of the American Stock Exchange or the Nasdaq Stock Market.same class are then listed;
(lG) Comply Make available for inspection by any Seller, any underwriter participating in all material respects with all applicable rules any disposition pursuant to such Registration Statement, and regulations any attorney, accountant or other agent retained by Sellers holding at least a majority of the Commission and make generally available Registrable Stock included in such registration pursuant to its security holders earnings statements satisfying the provisions of this Registration Rights Agreement such financial and other records, pertinent corporate documents and properties of KCS as may be reasonably requested by such party in connection with such Registration Statement solely for the purpose of effecting sales of Registrable Stock included in such registration; and
(H) In connection with any underwritten offering pursuant to Section 11(a2, Sellers shall (i) enter into an underwriting agreement in customary form with the underwriters participating in the offering; and (ii) provide reasonable cooperation to the underwriters and the Holders in marketing the Registrable Stock; provided, that not more than one KCS officer (the chief financial officer or other appropriate officer) shall be required to participate in any "road show" or similar presentation in connection with such offering and any such participation shall be subject to such officer's availability, shall be at the Holders' expense and shall be limited to offerings with an aggregate offering price of at least $100 million. In connection with any registration hereunder, each Seller shall furnish KCS such information regarding such Seller, the Securities Act Registrable Stock and Rule 158 the intended plan of distribution thereof as KCS may from time to time reasonably request in writing and, if any Seller does not later than 45 days after furnish such information prior to the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date filing of the Registration Statement, which statement shall conform to KCS may exclude the requirements Registrable Stock of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers Each Seller shall be deemed to any Holder have agreed by name or otherwise as the holder of any securities acquisition of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities Stock that, upon receipt of a any notice from the Company KCS of the occurrence of any event of the kind described in Subsection (E) of this Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n)4, such Holder Seller will forthwith discontinue its disposition of such the Registrable Securities under Stock pursuant to the Registration Statement relating thereto until such Holder’s Seller's receipt of the copies of the supplemented or amended Prospectus and/or amended Registration Statement contemplated by Subsection (E) of this Section 3(j)4 and, or until it is advised if so directed by KCS, will deliver to KCS (at KCS's expense) all copies, other than permanent file copies, then in writing (the “Advice”) by the Company that the use Seller's possession of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available relating to the Company which Registrable Stock current at the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness time of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)receipt of such notice.
Appears in 1 contract
Samples: Registration Rights Agreement (Kansas City Southern)
Registration Procedures. In connection with the Company’s case of each registration obligations hereundereffected by the Company pursuant to this Article II, the Company shallwill use its reasonable best efforts to effect such registration to permit the sale of securities in accordance with the intended method or methods of distribution thereof as expeditiously as reasonably practicable and will keep the Holders advised on a reasonably current basis as to the initiation of each registration and as to the completion thereof. At its expense, the Company will use its reasonable best efforts to:
(a) Prepare the required TZE Registration Statement, including all exhibits and file with the Commission on or prior financial statements required pursuant to the Filing DeadlineSecurities Act to be filed therewith, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for and before filing such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)statement, and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus amendments or any amendment or supplement supplements thereto, the Company shall (i) or Prospectus, furnish to the Special Counsel, Holder or group of Holders copies of all such documents proposed prepared to be filed, which documents (other than those incorporated by reference) will shall be subject to the review of, the Holder or group of such Special Counsel, Holders and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.respective counsel;
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the TZE Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the TZE Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(mPeriod, (ii) hereof, shall prepare and file with the Commission such as promptly as practicable any additional Registration Statements registration statements as may be necessary in order to register for resale under the Securities Act all of the Registrable Securities; , (iiiii) cause the any related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended amended, to be filed pursuant to Rule 424 424, (or any similar provisions then in force) promulgated under the Securities Act; (iiiiv) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; thereto, and (ivv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the TZE Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof as set forth in the TZE Registration Statement as so amended or in such Prospectus as so supplementedStatement.
(c) Notify Furnish to the Holder or group of Holders and each underwriter, if any, without charge, as many conformed copies as such Holder or group of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus Holders or any Prospectus supplement underwriter may reasonably request of the TZE Registration Statement and any amendment or post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(d) Furnish, without charge, such number of Prospectuses, including any preliminary Prospectuses, and other documents incident thereto, including any amendment of or supplement to the Prospectus, as the Holder or group of Holders may from time-to-time reasonably request;
(e) On or prior to the date on which the TZE Registration Statement is proposed declared effective, to the extent required by applicable law, register and qualify the securities covered by such registration statement pursuant to the securities or blue sky laws of each jurisdiction as shall be filed reasonably requested by the Holder or group of Holders; provided, however, that the Company 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 states or jurisdictions where it is not then so subject;
(but f) Notify the Holder or group of Holders and the managing underwriter, if any, and (if requested) confirm such advice in no event in writing and provide copies of the case of this subparagraph relevant documents, as soon as reasonably practicable after notice thereof is received by the Company, (A), less than three (3) Business Days prior to date of such filing); (Bi) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such TZE Registration Statement, or any amendment or supplement thereto, has been filed or becomes effective and when the applicable Prospectus has been filed; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any written comments by the Commission or any request by the Commission or any other Federal federal or state governmental authority or regulatory authority for amendments or supplements to the TZE Registration Statement or the Prospectus or for additional information; ;
(iig) Promptly notify the Holder or group of Holders (i) of the issuance by the Commission of any stop order suspending the effectiveness of the TZE Registration Statement covering or any order by the Commission or all any other federal or state governmental authority or regulatory authority preventing or suspending the use of the Registrable Securities any preliminary or final Prospectus or the initiation initiation, or written threatened initiation, of any Proceedings proceedings for that purposesuch purposes; (iiiii) 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 securities so registered for offering or sale in any jurisdictionjurisdiction or the initiation, or the initiation or threatening written threatened initiation, of any Proceeding proceeding for such purpose; and (iviii) if at any time when a Prospectus relating to the financial statements included in the TZE Registration Statement become ineligible for inclusion therein or is required to be delivered pursuant to the Securities Act of the occurrence of any event that makes any statement made as a result of which the Prospectus included in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectussuch registration statement, as the case may bethen in effect, it will not contain any 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, therein in the light of the circumstances under which they were made, not misleading. Without limitation , and following such notification promptly prepare and furnish to any remedies to which the Holder or group of Holders a reasonable number of copies of a supplement to, or an amendment of, such Prospectus as may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivereddelivered to the purchasers of such securities, neither the Registration Statement nor such Prospectus will shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, therein in the light of the circumstances under which they were made, made not misleading.;
(h) Prevent or obtain the withdrawal of any stop order or other order suspending the use of any preliminary or final Prospectus;
(i) Promptly incorporate in a Prospectus supplement or post-effective amendment such information as the managing underwriter and the Holder or group of Holders agree should be included therein relating to the plan of distribution with respect to such securities, and make all required filings of such Prospectus supplement or post-effective amendment as soon as reasonably practicable after being notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(j) Cooperate with the Holder or group of Holders and the managing underwriter, if any, to facilitate the timely preparation and delivery of certificates representing securities to be sold that are in a form eligible for deposit with The Depository Trust Company and that do not bear any restrictive legends, and enable such securities to be in such denominations and registered in such names as the managing underwriter may request at least two Business Days prior to any sale of securities in any underwritten offering that meets the requirements of Section 2.1(e);
(k) Cause Provide a transfer agent and registrar for all Registrable Securities relating registered pursuant to such the TZE Registration Statement and a CUSIP number for all such securities, in each case not later than the effective date of such registration;
(l) Cause all such securities registered hereunder to be listed on each securities exchange on which the New York Stock Exchangesame securities issued by the Company are then listed;
(m) In connection with any underwritten offering meeting the requirements of Section 2.1(e), enter into an underwriting agreement in form reasonably necessary to effect the offer and sale of such securities, provided that (i) such underwriting agreement contains reasonable and customary provisions, (ii) if participating in such underwriting, a Holder shall also enter into and perform its respective obligations pursuant to such agreement, (iii) if participating in such underwriting, the American Stock Exchange or indemnification and contribution obligations of such Holder shall be several and not joint, and (iv) if participating in such underwriting, the Nasdaq Stock Market.aggregate amount of such Holder’s liability shall not exceed its net proceeds from such underwritten offering;
(ln) Comply in all material respects In connection with all applicable rules any underwritten offering meeting the requirements of Section 2.1(e), obtain for delivery to any Holder or group of Holders and regulations the underwriter an opinion from counsel for the Company dated the date of the Commission closing pursuant to the underwriting agreement, in customary form, scope and make generally substance, which opinion shall be reasonably satisfactory to such Holder or group of Holders and to the underwriter, as the case may be, and their respective counsel;
(o) In connection with any underwritten offering meeting the requirements of Section 2.1(e), pursuant to the TZE Registration Statement, obtain for delivery to the Company and the managing underwriter, with copies to any Holder or group of Holders, a “cold comfort” letter from the Company’s independent certified public accountants in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing underwriter reasonably requests, dated the date of execution of the underwriting agreement and brought down to the closing pursuant to the underwriting agreement;
(p) In connection with any underwritten offering meeting the requirements of Section 2.1(e), cooperate with any Holder or group of Holders and each underwriter, if any, participating in the disposition of such securities and their respective counsel in connection with any filings required to be made with the Financial Industry Regulatory Authority, Inc.;
(q) Make available to its security holders holders, as soon as reasonably practicable, an earnings statements statement satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of Act;
(r) In connection with any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to underwritten offering meeting the requirements of Rule 158.
(m) Request each selling Holder to furnish to Section 2.1(e), make available upon reasonable notice at reasonable times and for reasonable periods for inspection by a representative appointed by any Holder, by the Company information regarding such Holder managing underwriter and the distribution of such Registrable Securities as is required by law any attorney, accountant or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of other agent retained by any such Holder who fails (i) to furnish or any such information or (ii) to agree to furnishunderwriter, upon requestall pertinent financial and other records, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities corporate documents and properties of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force) the deletion and cause all of the reference Company’s officers, directors and employees and the independent public accountants who have certified the Company’s financial statements to such Holder in any amendment or supplement make themselves available to discuss the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition business of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of and to supply all information reasonably requested by any event of the kind described such Person in Section 3(c)(i)connection with such disposition as shall be necessary to enable them to exercise their due diligence responsibility, 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), provided that any such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed Person gaining access to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which pursuant to this Section 2.4(r) shall agree to hold such information in strict confidence and shall not make any disclosure or use any such information that the Company’s Board of Directors (the “Board”) reasonably Company determines not in good faith to be in confidential, and of which determination such Person is notified, unless (i) the Company’s best interest to disclose and which the Company release of such information is not otherwise required to disclose, or by law; (ii) there such information is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (becomes publicly known other than in the ordinary course through a breach of business) this or any mergerother agreement; (iii) such information is or becomes available to such Person on a non-confidential basis from a source other than the Company, consolidation, tender offer which source had no contractual or other similar transaction) available duty of confidentiality to the Company with respect to such information and of which the Board reasonably determines not Holder is aware; or (iv) such information is independently developed by such Person; and
(s) In connection with any underwritten offering meeting the requirements of Section 2.1(e), cause the senior executive officers of the Company to be participate in the Company’s best interest customary “road show” presentations that may be reasonably requested by the managing underwriter in any such underwritten offering and otherwise to disclose facilitate, cooperate with, and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days participate in the aggregate during any 12 month period (each, a “Blackout Period”)each proposed offering contemplated herein and customary selling efforts related thereto.
Appears in 1 contract
Samples: Registration Rights Agreement (Maxeon Solar Technologies, Ltd.)
Registration Procedures. In connection with the Company’s Promptly after Grantee's request for registration obligations hereunder, the Company Diana shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)Statement, and use its reasonable best efforts to cause the such Registration Statement to become effective and remain effective all as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, set forth in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.paragraph 1;
(ib) Prepare and file with the Commission such amendments, including post-effective amendments, amendments to such Registration Statement and supplements to the Registration Statement prospectus contained therein as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement effective for reasons other than such period as may be reasonably necessary to effect the failure sale of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.securities;
(c) Notify [Reserved];
(d) Use its best efforts to register or qualify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the securities covered by such Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date under such state securities or blue sky laws of such filing); jurisdictions as Grantee may reasonably request in writing except that Diana shall not xxx xny purpose be required to execute a general consent to service or process or to qualify to do business as a foreign corporation in any jurisdiction wherein it is not so qualified;
(Be) Notify Grantee promptly after it shall receive notice thereof, of the time when the Commission notifies the Company whether there will be such Registration Statement has become effective or a “review” supplement to any prospectus forming a part of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and has been filed;
(Cf) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) Notify Grantee promptly of any request by the Commission 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 Grantee, any other Federal or state governmental authority for amendments or supplements to the such Registration Statement or Prospectus prospectus which, in the opinion of counsel for Grantee, is required under the Securities Act or for additional information; (ii) the rules and regulations thereunder in connection with the distribution of the issuance Diana Shares of Xxxxxee, including any amendments or supplements requested by Grantee related to a change in the plan of distribution of securities by Grantee;
(h) Prepare and promptly file with the Commission of any stop order suspending the effectiveness and promptly notify Grantee of the Registration Statement covering any filing of such amendment or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect supplement 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus prospectus as may be necessary to correct any statements or omissions if, at the time when a prospectus relating to such securities is required to be delivered under the Securities Act, any event shall have occurred as the result of which any such prospectus or any document incorporated or deemed to be incorporated therein by reference untrue other prospectus as then in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any 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, in the light of the circumstances under in which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses ;
(i) through (iv) Advise Grantee promptly after it shall receive notice or obtain knowledge thereof, of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain of any stop order by the withdrawal of, (i) any order Commission suspending the effectiveness of the such Registration Statement or (ii) any suspension of the qualification (initiation or exemption from qualification) threatening of any proceeding for that purpose and promptly use its reasonable best efforts to prevent the issuance of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.stop order or to obtain its withdrawal if such stop order should be issued;
(ej) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and Not file any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement or prospectus to be listed which Grantee shall have reasonably objected on the New York Stock Exchange, the American Stock Exchange grounds that such amendment or the Nasdaq Stock Market.
(l) Comply supplement does not comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) requirements of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementrules and regulations thereunder, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within after having been furnished with a reasonable time copy thereof at least five business days prior to the filing thereof, unless in the opinion of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If counsel for Diana the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any filing xx xuch amendment or supplement is reasonably necessary to the Registration Statement filed protect Diana from any lxxxxxities under any applicable federal or prepared subsequent to the time that state law and such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder filing will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the not violate applicable Prospectus may be resumed, law; and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Stock Option Agreement (Diana Corp)
Registration Procedures. In connection with the CompanyPurchaser’s registration obligations hereunder, the Company Purchaser shall:
(ai) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three two (32) Business Days prior to the filing of the a Registration Statement or any related Prospectus (as defined in Section 8 below) or any amendment or supplement thereto, the Company Purchaser shall (i) furnish to the Special Sellers and Seller’s counsel set forth in Section 13 (“Sellers’ Counsel, ”) copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company Purchaser shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel Sellers shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(ia) Prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (iib) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as reasonably possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders Sellers true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Securities Exchange Act of 1934, as amended, with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Sellers thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(ciii) Notify the Holders of Registrable Securities to be sold Sellers and the Special Sellers’ Counsel as promptly as possible reasonably possible, and (Aif requested by any such Seller or Sellers’ Counsel) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed confirm such notice in writing no later than one (but in no event in the case of this subparagraph (A), less than three (31) Business Days prior to date Day thereafter, of such filing); any of the following events: (Bi) when the Commission notifies the Company Purchaser whether there will be a “review” of such any Registration Statement and whenever Statement; (ii) the Commission comments in writing on such any Registration Statement; and Statement (C) with respect in which case the Purchaser shall deliver to the Sellers and Sellers’ Counsel a copy of such comments and of all written responses thereto; provided, however, the Purchaser will not be required to provide copies of any responses that would result in the disclosure to a Seller of material, non-public information concerning the Purchaser unless the Sellers have executed a confidentiality agreement with the Purchaser); (iii) any Registration Statement or any post-effective amendment, when the same has become effective amendment is declared effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiv) of any request by the Commission or any other Federal foreign, federal or state governmental authority for amendments requests any amendment or supplements supplement to the any Registration Statement or Prospectus or for requests additional informationinformation related thereto; (iiv) of the issuance by the Commission of issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiivi) of the receipt by the Company Purchaser receives notice 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 threat of any Proceeding for such purpose; and or (ivvii) if the financial statements included or incorporated by reference in the any Registration Statement become ineligible for inclusion or incorporation therein or of the occurrence of any event that makes any statement made in the any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or that requires any revisions revision to the a Registration Statement, Prospectus or other documents document is required so that, in the case of the Registration Statement or the Prospectus, as the case may be, that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through .
(iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its reasonable best efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas soon as practicable.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(fv) Furnish to each Holder Seller and the Special Sellers’ Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person Seller (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gvi) Promptly deliver to each Holder Seller and the Special Sellers’ Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons Sellers may reasonably request; and the Company . The Purchaser hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Sellers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hvii) Use reasonable best efforts to maintain the listing of such Registrable Securities on each national securities exchange, market or trading or quotation facility on which the Shares are then listed or quoted (a “Trading Market”).
(viii) Prior to any public offering of Registrable Securities, use its reasonable best efforts to register or qualify or cooperate with the selling Holders Sellers and the Special Sellers’ 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 the Sellers request in writing (provided, however, Purchaser shall not be required to (x) qualify to do business in any Holder requests jurisdiction where it would not otherwise be required to qualify but for this Section 7(b)(viii), (y) subject itself to general taxation in writingany jurisdiction where it would not otherwise be so subject but for this Section 7(b)(viii), or (z) file a general consent to service of process in any such jurisdiction), to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(iix) Cooperate with the Holders Sellers to facilitate the timely preparation and delivery of certificates (if the Registrable Securities are certificated) representing Registrable Securities to be sold delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Purchasers may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(jx) Upon If the occurrence financial statements included or incorporated by reference in any Registration Statement become ineligible for inclusion or incorporation therein or any statement made in any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or any revision to a Registration Statement, Prospectus or other document is required so that it will not contain any untrue statement of a material fact or omit to state any event contemplated by Section 3(c)(C)(iii) material fact required to be stated therein or (iv)necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Purchaser shall, as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: American Depositary Share Purchase Agreement (Grifols SA)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the each Registration Statement or any related Prospectus or any amendment or supplement theretothereto (excluding any document that would be incorporated or deemed incorporated therein by reference), the Company shall shall, (i) furnish to the Special Counsel, each Holder copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object and in good faith object, provided, the Company is notified of such objection in writing within three (3) Business no later than 5 Trading Days after their receipt thereof, unless counsel to the Company determines in writing that Holders have been so furnished copies of such objection is without meritdocuments.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business within 15 Trading Days, to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the a Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 90% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale of by the Holders of not less than 130% of the number of such Registrable Securities.
(d) Notify the Holders of Registrable Securities to be sold and (which notice shall, pursuant to clauses (ii) through (vi) hereof shall be accompanied by an instruction to suspend the Special Counsel use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than five Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation ; and (vi) the occurrence or existence of any pending corporate development with respect to any remedies to which the Holders Company that the Company believes may be entitled under this Agreementmaterial and that, if any in the determination of the events described Company, makes it not in clauses (i) through (iv) the best interests of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of allow continued availability or the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentProspectus.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and . Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hf) Prior to any public offering of Registrable Securities, use its best Use commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) resale of such Registrable Securities for offer and sale as required under the applicable securities or Blue Sky laws of such jurisdictions each State within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration StatementPeriod; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(ig) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(jh) Upon the occurrence of any event contemplated by this Section 3(c)(C)(iii) or (iv)3, as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (vi) of Section 3(d) above to suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, or the Company otherwise notifies the Holders of its election to suspend the availability of a Registration Statement and Prospectus pursuant to clause (vi) of Section 3(d), then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable, except that in the case of suspension of the availability of a Registration Statement and Prospectus pursuant to clause (vi) of Section 3(d), the Company shall not be required to take such action until such time as it shall determine that the continued availability of the Registration Statement and Prospectus is no longer not in the best interests of the Company.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(li) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available Commission.
(j) Use its best efforts to its security holders earnings statements satisfying avoid the provisions issuance of, or, if issued, obtain the withdrawal of Section 11(a(i) any order suspending the effectiveness of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to or (ii) any suspension of the requirements qualification (or exemption from qualification) of Rule 158any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(mk) Request The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each selling Holder to furnish to the Company information regarding a statement as to the number of shares of Common Stock beneficially owned by such Holder and and, if requested by the distribution Commission, the controlling person thereof, within three Trading days of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and Company’s request. During any periods that the Company may exclude from such is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities of solely because any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities three Trading Days of the Company’s request, then any liquidated damages that are accruing at such Holder time shall have the right to require (if be tolled until such reference to such Holder by name or otherwise information is not required by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement delivered to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementCompany.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (U S Restaurant Properties Inc)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) ten Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated therein by reference), the Company shall (i) furnish to the Holder and any Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Holders and such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the any Special Counsel Counsel, shall reasonably object in writing within three (3) Business Days after of their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the any Special Counsel as promptly as possible (Aand, in the case of (i)(A) below, not less than five days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Business Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; Statement and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) if at any time any of the representations and warranties of the Company contained in any agreement contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (ivvi) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or -6- that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder the Holders of a majority in interest of the Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the any Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, to the extent requested by such Person and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the any Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Holders, and the any Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(vi), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause Use its best efforts to cause all Registrable Securities relating to such Registration Statement to be listed eligible for quotation on the New York Stock ExchangeNational Association of Securities Dealers, Inc.'s OTC Bulletin Board (the American Stock Exchange "OTC Bulletin Board") and any other securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which similar securities issued by the Nasdaq Stock MarketCompany are then listed as and when required pursuant to the Purchase Agreement.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request The Company may require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who unreasonably fails (i) to furnish such information or (ii) to agree to furnish, upon within 15 Business Days after receiving such request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have has the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each The Holder covenants and agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of that (i) it will not sell any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of the Prospectus as then amended or supplemented as contemplated in Section 3(g) and notice from the Company that such Registration Statement and any additional post-effective amendments thereto have become effective as contemplated by Section 3(c) and (ii) it and its officers, directors or supplemental filings that are incorporated or deemed Affiliates, if any, will comply with the prospectus delivery requirements of the Securities Act as applicable to be incorporated by reference them in such Prospectus or connection with sales of Registrable Securities pursuant to the Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s 's Board of Directors (the “"Board”") reasonably determines not to be in the Company’s 's best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s 's best interest to disclose and which the Company would be required to disclose under the Registration Statementdisclose, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 15 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 30 days in the aggregate during any 12 month period 365-day period; provided, however, that no such postponement or suspension shall be permitted for consecutive 15 day periods, arising out of the same set of facts, circumstances or transactions.
(eacho) At its sole discretion, add the Registrable Shares to any currently filed registration statement as an amendment to said registration statement in order to save filing and legal costs in connection with the procurement of the Registration Statement, provided that the Company has a “Blackout Period”)reasonable belief that the registration statement will be deemed effective in the appropriate time period, and further that it is not in any way violating any covenants with other investors in connection with such registration statement by adding the Registrable Shares to said registration statement.
Appears in 1 contract
Samples: Registration Rights Agreement (World Wide Wireless Communications Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business four Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, each Holder and Legal Counsel copies of all the “Selling Stockholders” section of such documents document, the “Plan of Distribution” and any risk factor contained in such document that addresses specifically this transaction or the Selling Stockholders, as proposed to be filed, filed which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, Holder and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. Legal Counsel The Company shall not file the a Registration Statement or Statement, any such Prospectus or any amendments or supplements thereto to in which the Holders of “Selling Stockholder” section thereof differs in any material respect from the disclosure received from a majority of the Registrable Securities Holder in its Selling Holder Questionnaire (as amended or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritsupplemented).
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the each Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that would not result in the Registration Statementdisclosure to the Holders of material and non-public information concerning the Company; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statements and the disposition of all Registrable Securities covered by the each Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplementedStatement.
(c) Notify the Holders of Registrable Securities to be sold and the Special Legal Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing and, in the case of (v) below, not less than three Trading Days prior to the financial statements in any Registration Statement becoming ineligible for inclusion therein) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a Selling Stockholder or to the Plan of Distribution, but not information which the Company believes would constitute material and non-public information); and (C) with respect to the each Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the such Registration Statement, Prospectus or other documents so that, in the case of the such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its reasonable best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, thereto and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by referencefurnished) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such all jurisdictions within the United States as any Holder requests in writingStates, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration StatementStatements; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction. The Company shall promptly notify Legal Counsel and each Holder who holds Registrable Securities 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.
(ih) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration StatementStatements, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statement Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the no Registration Statement nor such any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kj) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the The Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution person thereof that has voting and dispositive control over the Shares. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of the Registrable Securities solely because any Holder fails to furnish such information within three Trading Days of the Company’s request, any liquidated damages that are accruing at such time as to such Holder only shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended as to such Holder only, until such information is delivered to the Company.
(k) The Company shall use its best efforts either to (i) cause all the Registrable Securities covered by a Registration Statement to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities as is required by law or then permitted under the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition rules of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to discloseexchange, or (ii) there is secure designation and quotation of all the Registrable Securities covered by a significant business opportunity Registration Statement on The NASDAQ Capital Market and, without limiting the generality of the foregoing, to use its best efforts to arrange for at least two market makers to register with the National Association of Securities Dealers, Inc. (including, but not limited to, the acquisition or disposition of assets (other than “NASD”) as such with respect to such Registrable Securities. The Company shall pay all fees and expenses in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend connection with satisfying its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”3(k).
(l) If requested by a Holder, the Company shall (i) as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) as soon as practicable make all required filings of such prospectus supplement or post-effective amendment 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 Holder holding any Registrable Securities.
Appears in 1 contract
Samples: Registration Rights Agreement (Microfield Group Inc)
Registration Procedures. (a) In connection with any Shelf Registration Statement and any Prospectus required by this Agreement to permit the Company’s registration obligations hereundersale or resale of Registrable Securities, the Company shall:
(ai) Prepare and file with the Commission on or prior use commercially reasonable efforts to the Filing Deadline, a keep such Shelf Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become continuously effective and remain effective provide all requisite financial statements until such time as provided hereinthere cease to be Registrable Securities; provided, however, upon the occurrence of any event that not less than three (3) Business Days prior to the filing of the would cause any such Shelf Registration Statement or any related the Prospectus contained therein (A) to contain a material misstatement or any amendment omission or supplement thereto(B) not to be effective and usable for resale of Registrable Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Shelf Registration Statement, in the case of clause (i) furnish A), correcting any such misstatement or omission, and, if Commission review is required, shall use commercially reasonable efforts to the Special Counsel, copies of all cause such documents proposed amendment to be filed, which documents (other than those incorporated by referencedeclared effective and such Shelf Registration Statement and the related Prospectus to become usable for their intended purpose(s) will be subject to the review of such Special Counsel, and as soon as practicable thereafter;
(ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants use commercially reasonable efforts to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare prepare and file with the Commission such amendments, including amendments and post-effective amendments, amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective until such time as there cease to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all be Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and to comply fully with the applicable provisions of Rules 424 and 430A under the Securities Act in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from a timely manner; and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities securities covered by the such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of disposition distribution by the Holders sellers thereof set forth in the such Shelf Registration Statement as so amended or in such Prospectus as so supplemented.supplement to the Prospectus;
(ciii) Notify the Holders of advise each Holder whose Registrable Securities to be sold and the Special Counsel as promptly as possible have been included in a Shelf Registration Statement, (A) when a the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the such Shelf Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iB) of any request by the Commission for amendments to the Shelf Registration Statement or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; information relating thereto, (iiC) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement covering any under the Securities Act or all of the Registrable Securities or the initiation of suspension by any Proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension state securities commission of the qualification or exemption from qualification of any of the Registrable Securities for offering or sale in any jurisdiction, or the initiation or threatening of any Proceeding proceeding for such purpose; and (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or any of the occurrence preceding purposes, (D) of the happening of any event that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Shelf Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or blue sky laws, the Company shall use commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(iv) furnish without charge, upon request, to each selling Holder named in a Shelf Registration Statement, and each of the underwriter(s), if any, before filing with the Commission, copies of the Shelf Registration Statement or any Prospectus included therein or any amendments or supplements to any such Shelf Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Shelf Registration Statement), which documents will be subject to the review and comment of such Holders and underwriter(s) in connection with such sale, if any, for a period of at least three Business Days, and the Company will not file any such Shelf Registration Statement or Prospectus or any document amendment or supplement to any such Shelf Registration Statement or Prospectus (including all such documents incorporated or deemed by reference) to be incorporated therein which a Holder of Registrable Securities covered by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the such Shelf Registration Statement or the Prospectusunderwriter(s), if any, shall reasonably object in writing within three Business Days after the receipt thereof (such objection to be deemed timely made upon confirmation of telecopy transmission within such period). The objection of a Holder or underwriter, if any, shall be deemed to be reasonable if such Shelf Registration Statement, amendment, Prospectus or supplement, as the case may beapplicable, it will not contain any untrue statement of as proposed to be filed, contains a material fact misstatement or omit to state any material fact required to be stated therein or necessary to make omission. Notwithstanding the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occursforegoing, the Company shall use its best efforts not be required to respond to and correct take, or refrain from taking, any actions under this clause (iv) that are not, in the event.reasonable opinion of counsel for the Company, in compliance with applicable law;
(dv) Use its best efforts promptly prior to avoid the issuance of, or, if issued, use best efforts filing of any document that is to obtain the withdrawal of, (i) any order suspending the effectiveness of the be incorporated by reference into a Shelf Registration Statement or (ii) Prospectus in connection with such registration or sale, if any, provide copies of such document to each selling Holder named in the Shelf Registration Statement in connection with such exchange, registration or sale, if any, and to the underwriter(s), if any, make the Company’s representatives available for discussion of such document and other customary due diligence matters subject to execution and delivery of customary confidentiality agreements, and include such information in such document prior to the filing thereof as such selling Holders or underwriter(s), if any, reasonably may request to correct any suspension material misstatement or omission contained therein or omitted therefrom or in order to comply with the applicable requirements of the qualification Securities Act, the Exchange Act or the rules and regulations promulgated thereunder;
(vi) make available at reasonable times for inspection by the selling Holders, the underwriter(s), if any, participating in any disposition pursuant to such Shelf Registration Statement and any attorney or exemption from qualification) of accountant retained by such selling Holders or any of the Registrable Securities for sale in any jurisdictionunderwriter(s), at all financial and other records, pertinent corporate documents and properties of the earliest practicable moment.
(e) If Company and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney or accountant in connection with such Shelf Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness and to participate in meetings with investors to the extent requested by the underwriter(s), if any; provided that any Holder, underwriter or representative of any Holder of Registrable Securitiesor underwriter requesting or receiving such information shall agree to be bound by reasonable confidentiality agreements and procedures with respect thereto;
(vii) if requested by any selling Holders or the underwriter(s), (i) if any, promptly incorporate in any Shelf Registration Statement or Prospectus, pursuant to a Prospectus supplement or post-effective amendment to the Registration Statement if necessary, such information as the Company such selling Holders and underwriter(s), if any, may reasonably agrees should be request to have included therein to correct any material misstatement or omission contained therein or omitted therefrom or in order to comply with the applicable requirements of the Securities Act, the Exchange Act or the rules and (ii) regulations promulgated thereunder, including, without limitation, information relating to the “Plan of Distribution” of the Registrable Securities, information with respect to the number of Registrable Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the 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 practicable after the Company has received notification is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided;
(viii) upon request, however, that furnish to each selling Holder and each of the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counselunderwriter(s), violate applicable law.
(f) Furnish to each Holder and the Special Counselif any, without charge, at least one conformed copy of each the Shelf Registration Statement Statement, as first filed with the Commission, and of each amendment thereto, including financial statements and schedules, and schedules (without all exhibits to the extent requested by such Person (including those previously furnished or documents incorporated by reference) promptly after the filing of such documents with the Commission.reference therein or exhibits thereto, unless requested);
(gix) Promptly upon request, deliver to each selling Holder and each of the Special Counselunderwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of preliminary prospectus) and each any amendment or supplement thereto as such Persons reasonably may reasonably request; and provided, that if no Shelf Registration Statement is effective or no Prospectus is usable, the Company shall deliver to each selling Holder a notice to that effect in response to such request; the Company hereby consents to the use (in accordance with law and this Agreement) of such the Prospectus and each any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the sale of the Registrable Securities covered by such the Prospectus and or any amendment or supplement thereto.;
(hx) Prior upon the reasonable request of such Holder, enter into such agreements (including an underwriting agreement containing customary terms), and make such representations and warranties, and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Registrable Securities pursuant to a Shelf Registration Statement contemplated by this Agreement, all to such extent as may be customarily and reasonably requested by any Holder of Registrable Securities or underwriter in connection with any sale or resale pursuant to a Shelf Registration Statement contemplated by this Agreement; and whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, the Company shall:
(A) upon the request of any Holder, furnish to each underwriter, if any, in such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the effectiveness of the Shelf Registration Statement:
(1) an opinion and 10b-5 letter in customary form of counsel for the Company, covering the matters customarily covered in opinions and 10b-5 letters requested in similar underwritten offerings and such other matters as such parties may reasonably request; and
(2) use commercially reasonable efforts to obtain a customary comfort letter, dated the date of effectiveness of the Shelf Registration Statement, from the Company’s independent accountants, in the customary form and covering matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings;
(B) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with clause (A) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company;
(xi) prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Holders, the underwriter(s), if any, and the Special Counsel their respective counsel in connection with the registration or and qualification (or exemption from such registration or qualification) of such the Registrable Securities for offer and sale under the state securities or Blue Sky blue sky laws of such jurisdictions within the United States of America as any Holder requests in writingthe selling Holders or underwriter(s), to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period if any, may reasonably request and to do any and all other acts or things necessary or advisable to enable permit the disposition in such jurisdictions of the Registrable Securities covered by the Shelf Registration Statement in a Registration Statement; provided, however, manner that is in compliance with the Company 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 that would subject it to general service applicable laws of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.jurisdiction;
(ixii) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as if any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any fact or event contemplated by Section 3(c)(C)(iii3(a)(iii)(D) hereof shall exist or (iv), as promptly as possiblehave occurred, prepare a supplement or amendment, including a post-effective amendment, amendment to the Shelf Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and reference or file any other required document so that, as thereafter delivereddelivered to the purchasers of Registrable Securities, neither the Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading;
(xiii) cooperate and assist in any filings required to be made with FINRA and in the light performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the circumstances under which they were made, not misleading.rules and regulations of FINRA; and
(kxiv) Cause all Registrable Securities relating otherwise use commercially reasonable efforts to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holders holders, as soon as practicable, a consolidated earnings statements satisfying statement meeting the provisions requirements of Section 11(a) of Rule 158 under the Securities Act and Rule 158 (which need not later than 45 days after be audited) for the end of any 3twelve-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Shelf Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the prompt review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business within ten Trading Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than one Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such the Registration Statement and whenever the Commission comments in writing on such the Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and request in connection with resales by the Holder of Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(hg) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (v) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus, subject to the payment of liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in person thereof that has voting and dispositive control over the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)Shares.
Appears in 1 contract
Samples: Registration Rights Agreement (Pro Pharmaceuticals Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company with respect to any Registration Statement pursuant to Sections 2.1 and 2.2 hereof, the Company shall:
(a) Prepare and file with the Commission SEC as soon as practicable each such Registration Statement (but in any event on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewithdate of filing thereof required under this Agreement) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the each such Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the before filing of the any such Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall (i) furnish afford promptly to the Special CounselHolders of the Registrable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject filed a reasonable time prior to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Actproposed filing thereof. The Company shall not file the any Registration Statement or any such Prospectus or any amendments or supplements thereto to which if the Holders of a majority of the Registrable Securities covered by such Registration Statement, their counsel, or the Special Counsel managing underwriter or underwriters, if any, shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel failure to file any such amendment or supplement would involve a violation of the Company determines in writing that such objection is without meritSecurities Act or other applicable law.
(ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the such Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securitiestime periods prescribed hereby; (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 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, the Exchange Act and the Exchange Act rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all Registrable Securities securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold Securities, their counsel and the Special Counsel as managing underwriter or underwriters, if any, promptly as possible (Abut in any event within two (2) Business Days), and confirm such notice in writing, (i) when a Prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective (which including in such notice shall be delivered to the Purchasers and Special Counsel on the same day as a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement covering or of any order preventing or all suspending the use of any Prospectus or the initiation or threatening of any proceedings for that purpose, (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Securities or the initiation representations and warranties of the Company contained in any Proceedings for that purpose; agreement (iiiincluding any underwriting agreement) contemplated by Section 3(m) below cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) the suspension of the qualification or exemption from qualification of the Registration Statement or any of the Registrable Securities covered thereby for offer or sale in any jurisdiction, or (B) the initiation or threatening of any Proceeding proceeding for such purpose; and , (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence happening of any event event, the existence of any condition or information becoming known that makes requires the making of any statement made change in the any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement, it will conform in all material respects with the Registration Statement requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and that in the case of any Prospectus, as it will conform in all material respects with the case may be, requirements of the Securities Act and it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any and (vi) of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts Company's reasonable determination that a post-effective amendment to respond to and correct the eventsuch Registration Statement would be appropriate.
(d) Use its best efforts every reasonable effort to avoid prevent the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of the Registration Statement or (ii) of any suspension order preventing or suspending the use of a Prospectus or suspending the qualification (or exemption from qualification) of any of the Registrable Securities covered thereby for sale in any jurisdiction, and, if any such order is issued, to obtain the withdrawal of any such order at the earliest practicable possible moment.
(e) If requested by any Holder the managing underwriter or underwriters, if any, or the Holders of a majority of the Registrable SecuritiesSecurities being sold in connection with an underwriting offering, (i) promptly incorporate in a Prospectus prospectus supplement or post-effective amendment to the Registration Statement such information as the Company managing underwriter or underwriters, if any, or such Holders reasonably agrees should request to be included therein and to comply with applicable law, (ii) make all required filings of such Prospectus prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required and (iii) supplement or make amendments to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable lawsuch Registration Statement.
(f) Furnish to each Holder of Registrable Securities who so requests and to counsel for the Special CounselHolders of Registrable Securities and each managing underwriter, if any, without charge, at least upon request, one conformed copy of each the Registration Statement and each post-effective amendment thereto, including financial statements and schedules, and of all documents incorporated or deemed to be incorporated therein by reference and all exhibits to the extent requested by such Person (including those previously furnished or exhibits incorporated by reference) promptly after the filing of such documents with the Commission).
(g) Promptly deliver Deliver to each Holder of Registrable Securities, their counsel and the Special Counseleach underwriter, if any, without charge, as many copies of the each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and and, subject to the last paragraph of this Section 3, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders of Registrable Securities and the underwriter or underwriters or agents, if any, in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or qualify, and cooperate with the selling Holders of such Registrable Securities, the managing underwriter or underwriters, if any, and the Special Counsel their respective counsel in connection with the registration or qualification (or exemption from such registration or qualification) of of, such Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder requests the managing underwriter or underwriters reasonably request in writing, or, in the event of a non-underwritten offering, as the Holders of a majority of such Registrable Securities may request; provided, however, that where Registrable Securities are offered other than through an underwritten offering, the Company agrees to cause its counsel to perform Blue Sky investigations and file registrations and qualifications required to be filed pursuant to this Section 3(h); keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period period the Registration Statement relating to such Registrable Securities is required to be kept effective pursuant to this Agreement and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities securities covered by a Registration Statementthereby; provided, however, that the Company shall will not be required to (A) qualify generally to do business in any jurisdiction where it is not then so qualified or to qualified, (B) take any action that would subject it to general service of process in any such jurisdiction where it is not then so subject or (C) become subject the Company to any material tax taxation in any such jurisdiction where it is not then so subject.
(i) Cooperate with the 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 pursuant to a Registration Statementsold, which certificates shall not bear any restrictive legends whatsoever and shall be free, to the extent permitted by applicable law in a form eligible for deposit with The Depository Trust Company ("DTC"); and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder the managing underwriter or underwriters, if any, or Holders may reasonably request at least two (2) Business Days business days prior to any sale of Registrable Securities in a firm commitment underwritten public offering.
(j) Use its best efforts to cause the Registrable Securities covered by a 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 underwriter or underwriters, if any, to consummate the disposition of such Registrable Securities. In connection therewith, except as may be required solely as a consequence of the nature of such selling Holder's business, in which case the Company shall promptly after will cooperate in all reasonable respects with the effectiveness filing of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder granting of such shares of Registrable Securities under the Registration Statementapprovals.
(jk) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii3(c)(v) or (iv)3(c)(vi) above, as promptly as possible, practicable prepare a supplement or amendment, including a post-effective amendment, amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and and, subject to Section 3(a) hereof, file any other required document such with the SEC so that, as thereafter delivereddelivered to the purchasers of Registrable Securities being sold thereunder, neither the Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleadingmisleading and will otherwise comply with law.
(k1) Cause all Registrable Securities relating Prior to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the a Registration ,Statement, which statement shall conform to (i) provide the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration registrar for the Registrable Securities of any with certificates for such Holder who fails (i) to furnish such information or securities in a form eligible for deposit with DTC and (ii) to agree to furnish, upon request, provide a CUSIP number for such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementsecurities.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Securityholders' and Registration Rights Agreement (Packaged Ice Inc)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall, as long as it is required to effect the registration of Registrable Shares under the Securities Act pursuant to the provisions hereof:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three four (34) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to @Track and its counsel a copy of the Special Counsel, copies of all such documents draft Registration Statement proposed to be filed, filed which documents Registration Statement (other than those documents incorporated or deemed to be incorporated by reference) ), which document will be subject to the review of such Special Counsel, @Track and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Actcounsel. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel @Track and its counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable all Registrable Securities for Shares during the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements as necessary or advisable in order to register for resale under the Securities Act all of the Registrable SecuritiesShares in compliance with the Company's registration obligations hereunder; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, practicable to any comments received from the Commission with respect to the Registration Statement or any amendment thereto thereto, but in any event within fifteen (15) days, and as promptly as possible practicable provide the Holders @Track true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities Shares covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders @Track thereof set forth in the Registration Statement Statement(s) as so amended or in such Prospectus Prospectuses as so supplemented.
(c) Notify File additional Registration Statements if the Holders number of Registrable Securities Shares at any time exceeds 75% of the number of shares of Common Stock then registered in a Registration Statement. The Company shall have twenty (20) days to be sold file such additional Registration Statements.
(d) Notify @Track and the Special Counsel its counsel as promptly as possible practicable (Aand, in the case of (i)(A) below, not less than four (4) Business Days prior to such filing): (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to @Track and its counsel); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities Shares or the initiation of any Proceedings for that purpose; (iiiiv) if at any time any of the representations and warranties of the Company contained herein or in any of the other Transaction Documents ceases to be true and correct in all material respects; (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities Shares for sale in any jurisdiction, or the initiation or threatening of any Proceeding lawsuit, action, claim, investigation proceeding or hearing for such purpose; and (ivvi) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue or inaccurate in any material respect or that requires any revisions to the Registration StatementStatement(s), Prospectus Prospectus(es) or other documents so that, in the case of the Registration Statement Statement(s) or the ProspectusProspectus(es), as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(de) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities Shares for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder @Track and the Special Counselits counsel, without charge, at least one two (2) conformed copy copies of each Registration Statement and each amendment theretothereto (including the Prospectus, including financial statements and schedulesbut excluding all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by referenceexhibits) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder @Track and the Special Counselits counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons @Track and its counsel may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders @Track in connection with the offering and sale of the Registrable Securities Shares covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv2.2(d)(vi), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(ki) Cause Prior to any public offering of Registrable Shares, use commercially reasonable efforts to register or qualify or cooperate with @Track and its counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Shares for offer and sale under the securities or blue sky laws of such jurisdictions within the United States as @Track shall reasonably request in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities relating Shares covered by a Registration Statement; provided, that the Company shall not be required to qualify as a foreign corporation or execute a general consent to service of process in any jurisdiction where it is not then so qualified or subject the Company to any material tax in any such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Marketjurisdiction where it is not then so subject.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available Commission.
(k) May require @Track to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by @Track and, if requested by the Commission, the controlling person thereof.
(l) If applicable, cause its security holders earnings statements satisfying legal counsel to deliver the provisions of Section 11(alegal opinion contained in the Transfer Agent Instruction letter delivered by the Company to the transfer agent for its Common Stock within two (2) of the Securities Act and Rule 158 not later than 45 days Business Days after the end of any 3-month period (or 90 days after initial Registration Statement is declared effective by the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(m) Request each selling Holder Promptly make available for inspection by @Track and any managing underwriter participating in any disposition pursuant to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and any attorney or accountant or other agent retained by any such underwriter or selected by @Track (collectively, the "@Track Parties"), all financial and other records, pertinent corporate documents and properties of the Company may exclude from such registration and cause the Registrable Securities of Company's officers, directors, employees and independent accountants to supply all information reasonably requested by any such Holder who fails (i) to furnish seller, underwriter, attorney, accountant or agent in connection with such Registration Statement; provided, however, that @Track agrees that it will, and will cause the @Track Parties to, keep such information confidential and will not, and will cause the @Track Parties not to, disclose, divulge or (ii) to agree to furnishuse such information for any purpose other than the purposes contemplated by this Agreement, upon request, such additional information regarding such Holder except as may later otherwise be required by law after taking reasonable steps to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then minimize such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementdisclosure.
(n) If (i) there is material non-public information regarding the Company which has delivered a Prospectus to @Track and after having done so determined that the Prospectus must be amended or supplemented in order to comply with the requirements of the Securities Act or this Agreement, the Company shall promptly notify @Track and, if requested, @Track shall immediately cease making offers of Registrable Shares and return all Prospectuses then in possession of @Track to the Company’s Board . The Company shall promptly provide @Track with amended or supplemented Prospectuses and, following receipt of Directors the revised Prospectuses, @Track shall be free to resume making offers of the Registrable Shares.
(o) Notwithstanding anything in this Agreement to the “Board”) reasonably determines contrary, @Track shall not have the right to be in object to any exhibit to any Registration Statement or Prospectus. To the extent that @Track or its counsel object, delay or fail to approve the Registration Statement or any other documents pursuant to this Section 2.2, the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation 's obligations under this Section 3(n) Agreement shall be tolled for more than 60 days in the aggregate during any 12 month an equivalent period (each, a “Blackout Period”)of time.
Appears in 1 contract
Samples: Asset Purchase Agreement (At Track Communications Inc)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business two Trading Days prior to the filing of the Registration Statement or any related Prospectus or and as early as practicable prior to the filing of any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, Lead Purchasers and Lead Purchaser Counsel copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Lead Purchasers and Lead Purchaser Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto containing information regarding the plan of distribution and the selling securityholders to which the Holders of Lead Purchasers holding a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel prior to the Company determines in writing that such objection is without meritfiling.
(i) Prepare Subject to SECTION 6.1(e) prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; and (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplementedthereto.
(c) Notify the Holders Purchasers of Registrable Securities to be sold and the Special Lead Purchaser Counsel as promptly as possible reasonably possible, and (Aif requested by any such Person) when a Prospectus or confirm such notice in writing no later than one Trading Day thereafter, of any Prospectus supplement or post-effective amendment to of the Registration Statement is proposed to be filed following events: (but in no event in the case of this subparagraph (A), less than three (3i) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “"review” " of such any Registration Statement and whenever Statement; (ii) the Commission comments in writing on such any Registration Statement; and (Ciii) with respect to the any Registration Statement or any post-effective amendment, when the same has become effective amendment is declared effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiv) of any request by the Commission or any other Federal or state governmental authority for amendments requests any amendment or supplements supplement to the any Registration Statement or Prospectus or for requests additional informationinformation related thereto; (iiv) of the issuance by the Commission of issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiivi) of the receipt by the Company receives notice 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 threat of any Proceeding for such purpose; and or (ivvii) if the financial statements included in the any Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or that requires any revisions revision to the a Registration Statement, Prospectus or other documents document is required so that, in the case of the Registration Statement or the Prospectus, as the case may be, that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation The Company shall furnish Lead Purchaser Counsel with copies of all comment letters on the Registration Statement from the Commission (and shall furnish the Purchasers with all portions of such comment letters related to the "Plan of Distribution" or "Selling Shareholders" section of such Registration Statement); shall keep Lead Purchaser Counsel fully apprised of the scope and status of any responses to the Commission and shall otherwise cooperate with Lead Purchaser Counsel in keeping Lead Purchasers appraised of the status of the Registration Statement. The Company shall not make any amendments to the Registration Statement or make any response to any remedies comment letter relating to which the Holders may be entitled under this Agreement, if any "Plan of Distribution" or the "Selling Shareholders" sections without the prior approval of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the eventLead Purchasers.
(d) Use its reasonable best efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas soon as possible.
(e) If requested by any Holder of Registrable Securitiesthe Lead Purchasers, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish furnish to each Holder Lead Purchaser and the Special Lead Purchaser Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder Purchaser and the Special Lead Purchaser Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment as amended or supplement thereto supplemented by each of the selling Holders Purchasers in connection with the offering and sale resale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto to the extent permitted by federal and state securities laws and regulations.
(g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all reasonable steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to the Purchasers evidence of such listing; and (iv) except as a result of the Excluded Events, during the Effectiveness Period, maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(h) Prior to any public offering of Registrable SecuritiesSecurities by the Purchasers, use its reasonable best efforts to register or qualify or cooperate with the selling Holders Purchasers and the Special Lead Purchaser 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 laws of such jurisdictions within the United States as any Holder Purchaser requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; providedPROVIDED, howeverHOWEVER, that the Company shall not be required obligated to file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then otherwise so subject.
(i) Cooperate with the Holders Purchasers 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, to the extent permitted by applicable law this Agreement and the Purchase Agreementunder law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Purchasers may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementreasonably request.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (ivdescribed in SECTION 6.2(c)(vii), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Cooperate with any due diligence investigation undertaken by the Purchasers in connection with the sale of Registrable Securities relating Securities, including, without limitation, subject to appropriate confidentiality agreements, by making available any documents and information; provided that the Company will not deliver or make available to any Purchaser material, nonpublic information and (ii) causing its officers and directors, counsel and independent certified public accountants to respond to such Registration Statement inquiries, , unless such Purchaser specifically requests in advance to be listed on the New York Stock Exchangereceive material, the American Stock Exchange or the Nasdaq Stock Marketnonpublic information in writing and executes an appropriate form of confidentiality agreement.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunder, At its expense the Company shall:
(a) Prepare (i) prepare and file with the Commission on or prior SEC, in accordance with this Article 6, Registration Statements with respect to the Filing Deadline, a Registration Statement registrations of the Registrable Securities on Form S-3 (or if such form is not available to any forms which may be utilized by the Company on another form appropriate and which shall permit the disposition of the Registrable Securities in accordance with the intended method or methods thereof, as specified in writing by the Holders, and, except for such registration in accordance herewith) (which shall include a Plan times as the Company is permitted hereunder to suspend the use of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing prospectus forming part of the Registration Statement Statements as provided in Section 6.7(b), use its commercially reasonable efforts to keep such Registration Statements continuously effective with respect to a Holder and to keep such Registration Statements free of any material misstatements or any related Prospectus omissions, until the earlier of (A) the date all Registrable Securities have been sold pursuant to effective Registration Statements and (B) the date that all Registrable Securities can be sold by all Holders publicly under Rule 144 under the Securities Act without restriction as to current public information, volume, manner of sale, or any amendment or supplement thereto, otherwise. The period of time during which the Company shall (i) furnish is required hereunder to keep the Special CounselRegistration Statements effective, copies of all such documents proposed as provided in the immediately preceding sentence, is referred to be filed, which documents (other than those incorporated by reference) will be subject to herein as the review of such Special Counsel, “Registration Period”; and (ii) at the request of any Holder cause use its officers and directors, counsel and independent certified public accountants commercially reasonable efforts to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the Registration Statement Statements and file with the SEC any other required document as may be necessary to keep such Registration Statements continuously effective until the expiration of the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus 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 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities covered by such Registration Statements during the Registration Statement during the applicable period Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Registration Statement Statements as so amended or in such Prospectus prospectus as so supplemented.;
(cb) Notify advise the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible within five (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (35) Business Days prior to date of such filing); Days:
(Bi) when the Commission notifies Registration Statements or any amendment thereto have been filed with the Company whether there will be a “review” of such Registration Statement SEC and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to when the Registration Statement Statements or any post-effective amendment, when the same amendments thereto has become effective effective;
(which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority SEC for amendments or supplements to the Registration Statement Statements or Prospectus the prospectus included therein or for additional information; ;
(iiiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities Statements or the initiation of any Proceedings proceedings for that such purpose; ;
(iiiiv) 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 included therein for sale in any jurisdiction, jurisdiction or the initiation or threatening of any Proceeding proceeding for such purpose; and and
(ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes requires the making of any statement made changes in the Registration Statement Statements or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus, in the light of the circumstances under which they were made) not misleading;
(c) use its commercially reasonable efforts to prevent the issuance of and obtain the withdrawal of any order suspending the effectiveness of any Registration Statement or as soon as reasonably practicable;
(d) if a Holder so requests in writing, promptly furnish to each such Holder, without charge, at least one copy of such Registration Statement(s) and any post-effective amendment thereto, including financial statements and schedules and, if explicitly requested, all exhibits in the Prospectusform filed with the SEC;
(e) during the Registration Period, promptly deliver to each such Holder, without charge, as many copies of the case prospectus included in such Registration Statements and any amendments or supplements thereto as such Holder may bereasonably request in writing; and the Company consents to the use, consistent with the provisions hereof, of the prospectus or any amendment or supplement thereto by each of the selling Holders of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the prospectus or any amendment or supplement thereto;
(f) during the Registration Period, if a Holder so requests in writing, promptly deliver to each such Holder, without charge one copy of the following documents, other than those documents available via EXXXX: (i) its annual report to its shareholders, if any (which annual report shall contain financial statements audited in accordance with GAAP in the United States of America by a firm of certified public accountants of recognized standing), (ii) if not included in substance in its annual report to shareholders, its annual report on Form 20-X (xx xxxxxxx xxxx), (xxx) its definitive proxy statement with respect to its annual meeting of shareholders, and (iv) each of its interim reports to its shareholders and, if not included in substance in its interim reports to shareholders, its interim report on Form 6-K (or similar form);
(g) prior to any public offering of Registrable Securities pursuant to either Registration Statement, promptly take such actions as may be necessary to register or qualify or obtain an exemption for the offer and sale under the securities or blue sky laws of such United States jurisdictions as any such Holders reasonably request in writing; provided that the Company shall not for any such purpose be required to qualify generally to transact business as a foreign corporation in any jurisdiction where it is not so qualified or to consent to general service of process in any such jurisdiction, and do any and all other acts or things reasonably necessary or advisable to enable the offer and sale in such jurisdictions of the Registrable Securities covered by such Registration Statement;
(h) upon the occurrence of any event contemplated by Section 6.4(b)(v) above, except for such times as the Company is permitted hereunder to suspend the use of the prospectus forming part of the Registration Statements, use its commercially reasonable efforts to prepare as soon as reasonably practicable a post-effective amendment to the Registration Statements or a supplement to the related prospectus, or file any other required document so that, as thereafter delivered to purchasers of the Registrable Securities included therein, the prospectus will not contain include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.;
(i) Cooperate with the Holders otherwise use its commercially reasonable efforts to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply comply in all material respects with all applicable rules and regulations of the Commission SEC which could affect the sale of the Registrable Securities;
(j) use its commercially reasonable efforts to cause all Registrable Securities to be listed on Nasdaq;
(k) use its commercially reasonable efforts to take all other steps necessary to effect the registration of the Registrable Securities contemplated hereby and to enable the Holders to sell Registrable Securities under Rule 144;
(l) provide to each Purchaser and its representatives, if requested, the opportunity to conduct a reasonable inquiry of the Company’s financial and other records during normal business hours and make generally available its officers, directors and employees for questions regarding information which such Purchaser may reasonably request in order to conduct any due diligence obligation on its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.part; and
(m) Request each selling Holder permit a single counsel for the Purchasers to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in review the Registration Statement, Statements and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each caseall amendments and supplements thereto, within a reasonable time two Business Days prior to the filing thereof with the SEC; provided that, in the case of each Registration Statementclauses (l) and (m) above, supplemented Prospectus and/or amended Registration Statement. If the Company shall not be required (A) to delay the filing of the Registration Statement refers to any Holder by name Statements or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement thereto as a result of any ongoing diligence inquiry by or on behalf of a Holder or to incorporate any comments to the Registration Statement filed Statements or prepared subsequent to any amendment or supplement thereto by or on behalf of a Holder if such inquiry or comments would require a delay in the time that such reference ceases to be required. Each Holder agrees by its acquisition filing of such Registrable Securities thatRegistration Statements, upon receipt of a notice from amendments or supplements, as the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j)case may be, or until it is advised in writing (the “Advice”B) by the Company that the use of the applicable Prospectus may be resumedto provide, andand shall not provide, in either caseany Purchaser or its representatives with material, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding unless such Purchaser agrees to receive such information and enters into a written confidentiality agreement with the Company which in a form reasonably acceptable to the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 3.1 hereof, the Company shallwill:
(a) Prepare and file with the Commission on or prior use its best commercially practicable efforts to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become be declared effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to by the SEC promptly after the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.;
(ib) Prepare as promptly as practicable, prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective as to the applicable Registrable Securities for during the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus 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 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use its reasonable best efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities covered by the Shelf Registration Statement during the applicable period Effectiveness Period in accordance with the intended methods of disposition by the Holders thereof Stockholder set forth in the such Shelf Registration Statement as so amended or in such Prospectus prospectus as so supplemented.;
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than at least three (3) Business Days days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) filing of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Shelf Registration Statement, Prospectus or other documents so thatany prospectus, in amendment or supplement thereto, furnish a copy thereof to the case of the Registration Statement Stockholder or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.counsel;
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment deliver to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special CounselStockholder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto prospectus as such Persons they may reasonably request; and request (the Company hereby consents consenting to the use of each such Prospectus and each amendment or supplement thereto prospectus by each of the selling Holders Stockholder in connection with the offering and sale of the Registrable Securities covered by such Prospectus prospectus and a reasonable number of copies of the Shelf Registration Statement and any amendment or supplement thereto.post-effective amendments thereto and any supplements to the prospectus, including financial statements and schedules, all documents incorporated therein by reference and all exhibits (including those incorporated by reference);
(he) Prior to any public offering of Registrable Securities, use its best commercially-reasonable efforts to register or qualify or cooperate with the selling Holders and the Special 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 such other securities or Blue Sky blue sky laws of such jurisdictions within as the United States as any Holder Stockholder reasonably requests in writing, to and keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period Period, and to do any and all other acts or and things that may be reasonably necessary or advisable to enable the Stockholder to consummate the disposition in such jurisdictions of the Registrable Securities covered by a the Shelf Registration Statement; provided, however, that the Company shall will not be required (i) to qualify generally to do business in any jurisdiction where it is would not then so qualified or otherwise be required to take qualify but for this clause, (ii) to subject itself to taxation in any action that would subject it such jurisdiction, (iii) to consent to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.or (iv) to comply with requirements under so-called “fair, just and equitable standards” under state securities laws;
(if) Cooperate with notify the Holders to facilitate Stockholder, at any time that a prospectus covered by the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Shelf Registration Statement (but no later than two days thereafter) cause an opinion of counsel is required to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon Securities Act, of the occurrence happening of any event contemplated by Section 3(c)(C)(iii) or (iv), of which it has knowledge and as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to result of which the prospectus included in the Shelf Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain then in effect would 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, therein not misleading in the light of the circumstances under which they were madethen existing, and, at the request of the Stockholder, the Company will promptly prepare a supplement or amendment to such prospectus so that, as thereafter delivered to the Stockholder, such prospectus, as so amended or supplemented, will not misleading.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 then existing;
(kg) Cause cause all Registrable Securities relating to securities covered by such Shelf Registration Statement to be listed on each securities exchange on which similar securities issued by the New York Stock Exchange, Company are then listed and to be qualified for trading on each system on which similar securities issued by the American Stock Exchange or the Nasdaq Stock Market.Company are from time to time qualified;
(lh) Comply in provide a transfer agent and registrar for all material respects securities covered by the Shelf Registration Statement not later than the effective date of the Shelf Registration Statement and thereafter maintain such a transfer agent and registrar;
(i) take all such other actions as may be reasonably required to expedite or facilitate the disposition of the securities covered by the Shelf Registration Statement;
(j) otherwise use commercially reasonably efforts to comply with the provisions of the Securities Act and all applicable rules and regulations of the Commission SEC, and make generally available to its security holders holders, as soon as reasonably practicable, an earnings statements statement, satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end promulgated thereunder, covering a period of any 3-month period at least twelve (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on months beginning with the first day of the Company’s first fiscal full calendar quarter of the Company after the effective date of the Shelf Registration Statement, which statement shall conform to the requirements of Rule 158.; and
(mk) Request each selling Holder to furnish to upon the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities issuance of any such Holder who fails (i) to furnish such information stop order suspending the effectiveness of a registration statement, or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to of any order suspending or preventing the filing use of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If any related prospectus or suspending the Registration Statement refers to any Holder by name or otherwise as the holder qualification of any securities of included in the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder Shelf Registration Statement for sale in any amendment or supplement jurisdiction, the Company will use its best efforts promptly to obtain the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition withdrawal of such Registrable Securities that, order. The Stockholder agrees that upon receipt of a any notice from the Company of the occurrence happening of any event of the kind described in Section 3(c)(i3.2(f), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder it will forthwith discontinue its disposition of such Registrable Securities under securities pursuant to the Shelf Registration Statement until such Holder’s receipt of the it receives copies of the supplemented Prospectus and/or or amended Registration Statement prospectus contemplated by Section 3(j)3.2(f) and, or until it is advised in writing (the “Advice”) if so directed by the Company that the use of the applicable Prospectus may be resumedCompany, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available will deliver to the Company which the Board reasonably determines not to be all copies, other than permanent file copies, then in the CompanyStockholder’s best interest to disclose and which possession of the Company would be required to disclose under prospectus that was in effect at the Registration Statement, then the Company may postpone or suspend filing or effectiveness time of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)receipt of such notice.
Appears in 1 contract
Samples: Asset Purchase Agreement (UniTek Global Services, Inc.)
Registration Procedures. In connection with the Company’s registration obligations hereunder, The procedures to be followed by the Company shalland Selling Shareholder in a Registration Statement pursuant to this Agreement, and the respective rights and obligations of the Company and Selling Shareholder, with respect to the preparation, filing and effectiveness of such Registration Statement, are as follows:
(a) Prepare and file with the Commission on or prior to the Filing DeadlineThe Company will, a Registration Statement on Form S-3 at least five (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (35) Business Days prior to the anticipated filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto (other than amendments and supplements that do nothing more than name Selling Shareholder and provide information with respect thereto), the Company shall (i) unless available to Selling Shareholder through public filings with the Commission, furnish to the Special CounselSelling Shareholder and its underwriters, if any, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, filed and (ii) at use its reasonable efforts to address in each such document when so filed with the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to Commission such inquiries comments as Selling Shareholder reasonably shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing propose within three (3) Business Days after their receipt thereof, unless counsel of the delivery of such copies to the Company determines in writing that such objection is without meritSelling Shareholder.
(b) The Company will use reasonable best efforts to as promptly as reasonably possible (i) Prepare prepare and file with the Commission such amendments, including post-effective amendments, and supplements to the each Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable law to keep the such Registration Statement continuously effective as with respect to the applicable disposition of all Registrable Securities covered thereby for the its Effectiveness Period and and, subject to the extent any Registrable Securities are not included limitations contained in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereofthis Agreement, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable SecuritiesSecurities held by Selling Shareholder; (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 (or any similar provisions then in force) promulgated under the Securities Act424; and (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the each Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders Selling Shareholder true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and such Registration.
(ivc) The Company will comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statements and the disposition of all Registrable Securities covered by the each Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplementedStatement.
(cd) Notify the Holders of Registrable Securities to be sold and the Special Counsel The Company will notify Selling Shareholder as promptly as possible reasonably practicable: (Ai)(A) when a Prospectus or any Prospectus prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).a
Appears in 1 contract
Samples: Registration Rights Agreement (Kenon Holdings Ltd.)
Registration Procedures. In connection with the Company’s registration obligations filing of any Registration Statement pursuant to Section 2 or 3 hereof, the Company shall effect such registrations to permit the exchange or sale of such securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Company hereunder, the Company shall:
(a) 5.1 Prepare and file with the Commission SEC as soon as practicable but in any event on or prior to the applicable Filing DeadlineDate, the Exchange Offer Registration Statement or if the Exchange Offer Registration Statement is not filed because of the circumstances contemplated by Section 2.9 hereof, a Shelf Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)as prescribed by Section 3 hereof, and cause the each such Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three that, if (31) Business Days prior a Shelf Registration is filed pursuant to Section 3 hereof or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof 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 of the any Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto relating thereto, the Company shall furnish to which and afford the Holders of the Registrable Notes to be registered pursuant to such Shelf Registration, or each Participating Broker-Dealer and to 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 (in each case at least 5 Business Days prior to such filing). The Company shall use its reasonable best efforts to reflect in each such Registration Statement or Prospectus or any amendments or supplements thereto when filed with the SEC, such comments as the Holders of a majority in aggregate principal amount of the Registrable Securities Notes may reasonably prepare, if the Holders must provide information for the inclusion in such Registration Statement or prospectus or any amendment or supplement thereto.
5.2 Provide an indenture trustee for the Registrable Notes or the Special Counsel shall reasonably object in writing within three Exchange Notes, as the case may be, and cause the Indenture (3) Business Days after their receipt thereof, unless counsel or other indenture relating to the Company determines Registrable Notes) to be qualified under the TIA not later than the effective date of the first Registration Statement; and in writing that connection therewith, to effect such objection is without meritchanges 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 reasonable 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.
(i) 5.3 Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendmentsamendments to each Shelf Registration or Exchange Offer Registration Statement, to as the Registration Statement case may be, as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to or the extent any Registrable Securities are not included in such Registration Statement for reasons other than Applicable Period, as the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securitiescase may be; (ii) cause the related Prospectus to be amended or supplemented by any Prospectus supplement required Prospectus supplementby applicable law, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to each of them with respect to the disposition of all Registrable Securities securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplementedsupplemented and with respect to the subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus. The Company shall not, during the Applicable Period, voluntarily take any action that would result in selling Holders of the Registrable Notes covered by a Registration Statement or Participating Broker-Dealers seeking to sell Exchange Notes not being able to sell such Registrable Notes or such Exchange Notes during that period, unless such action is required by applicable law, rule or regulation or permitted by this Agreement.
5.4 Furnish to such selling Holders and Participating Broker-Dealers who so request (ci) Notify upon the Company’s receipt, a copy of the order of the SEC declaring such Registration Statement and any post effective amendment thereto effective, (ii) such reasonable number of copies of such Registration Statement and of each amendment and supplement thereto (in each case including any documents incorporated therein by reference and all exhibits) and (iii) such reasonable number of copies of the Prospectus included in such Registration Statement (including each preliminary Prospectus) and each amendment and supplement thereto, and such reasonable number of copies of the final Prospectus as filed by the Company pursuant to Rule 424(b) under the Securities Act, in conformity with the requirements of the Securities Act and each amendment and supplement thereto. The Company hereby consents to the use of the Prospectus by each of the selling Holders of Registrable Securities Notes or each such Participating Broker-Dealer, as the case may be, and the underwriters or agents, if any, and dealers, if any, in connection with the offering and sale of the Registrable Notes covered by, or the sale by Participating Broker-Dealers of the Exchange Notes pursuant to, such Prospectus and any amendment thereto.
5.5 If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be sold delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto, the Company shall notify in writing the selling Holders of Registrable Notes, or each such Participating Broker-Dealer, as the case may be, their counsel and the Special Counsel as managing underwriters, if any, promptly as possible (Abut in any event within 5 Business Days) (i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective (which including in such notice shall be delivered to the Purchasers and Special Counsel on the same day as a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus post-effective amendment including financial statements and schedules, documents incorporated or for additional information; deemed to be incorporated by reference and exhibits), (ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement covering or of any order preventing or all suspending the use of the Registrable Securities any Prospectus or the initiation of any Proceedings proceedings for that purpose; , (iii) if at any time when a Prospectus is required by the Securities Act to be delivered in connection with sales of the Registrable Notes the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 5.14 hereof cease to be true and correct, (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of a Registration Statement or any of the Registrable Securities Notes or the Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale in any jurisdiction, or the initiation or threatening of any Proceeding proceeding for such purpose; and , (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence happening of any event event, the existence of any condition of any information becoming known to the Company that makes any statement made in the such Registration Statement or related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any revisions to the changes in, or amendments or supplements to, such Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or and the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, misleading and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Ship Finance International LTD)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, filed which documents (other than those incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business within ten Trading Days, to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel in writing as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing): (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and statements, schedules, and all exhibits and, to the extent requested by such Person (including those previously furnished Holder, all documents and exhibits incorporated or deemed to be incorporated therein by reference) reference promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(ih) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(j) Comply with all applicable rules and regulations of the Commission.
(k) Cause The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if requested by the Commission, the controlling person thereof.
(l) Use its best efforts to cause all Registrable Securities relating to such Registration Statement to be listed on Nasdaq and any other securities exchange, quotation system, market or over-the-counter bulletin board, if any, on which similar securities issued by the New York Stock Exchange, Company are then listed as and when required pursuant to the American Stock Exchange or the Nasdaq Stock MarketPurchase Agreement.
(lm) Comply Use its best efforts to comply in all material respects with all applicable rules and regulations of the Commission 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 not later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Level 8 Systems Inc)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare and file with the Commission such Registration Statements in order to register for sale under the Securities Act all of the Registrable Securities, to use its reasonable best efforts to cause such Registration Statements to become effective, and, as expeditiously as possible, to prepare and file such amendments, including post-effective amendments, to the Registration Statement amendments as may be necessary to keep the Registration Statement Statements continuously effective as to the applicable Registrable Securities for the its Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the each Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statementthereto; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statement(s) and the disposition of all Registrable Securities covered by the each Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.Statement;
(c) 6.2 Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Ai)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the each Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the such Registration Statement, Prospectus or other documents so that, in the case of the such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.;
(d) 6.3 Use its reasonable best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.;
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) 6.4 Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such all jurisdictions within the United States as any Holder requests in writingmay request, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.Statement(s);
(i) 6.5 Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration StatementStatement(s), which certificates shall be free, to the extent permitted by applicable law and the Purchase AgreementAgreement or applicable law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.request;
(j) 6.6 Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv5(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statement Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the no Registration Statement nor such any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(k) Cause all 6.7 As expeditiously as possible, furnish to each selling Holder of Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations reasonable numbers of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date copies of the Registration Statement, which statement shall conform to each amendment and supplement thereto, Prospectus, and such other documents as the requirements of Rule 158.
(m) Request each selling Holder of Registrable Securities may reasonably request in order to furnish facilitate the public sale or other disposition of the Registrable Securities;
6.8 Use its reasonable best efforts to the Company information regarding such Holder and the distribution of cause all such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementlisted on each securities exchange, and if applicable, on which similar securities issued by the Company may exclude are then listed;
6.9 In the event of any underwritten public offering, enter into and perform its obligations under an underwriting agreement in customary form with the managing underwriter of such offering;
6.10 In the event of any underwritten public offering, if requested by the underwriter, obtain a cold comfort letter from the Company’s independent public accountants in customary form and covering such registration matters of the type customarily covered by cold comfort letters, addressed to the selling Holders of Registrable Securities;
6.11 enter into such customary agreements (including underwriting agreements in customary form) and take all such other actions as the holders of a majority of the Registrable Securities of any such Holder who fails (i) being sold or the underwriters, if any, reasonably, request in order to furnish such information expedite or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to facilitate the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited towithout limitation, effecting a stock split or a combination of shares); and,
6.12 take such other actions as shall be reasonably requested by any Holder consistent with the acquisition or disposition terms of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)Agreement.
Appears in 1 contract
Samples: Note Purchase Agreement (China SLP Filtration Technology, Inc.)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the Before filing of the any Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto with the SEC, the Company shall (i) furnish to the Special Counsel, Initial Purchaser copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject filed and use its best efforts to reflect in each such document when so filed with the review of SEC such Special Counsel, comments as the Initial Purchaser reasonably shall propose and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority Company does not reasonably object within two Business Days of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel delivery of such copies to the Company determines in writing that such objection is without meritInitial Purchaser.
(ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective as from the Effectiveness Deadline Date to the applicable Registrable Securities for expiration of the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (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 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use its best efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the such Registration Statement during until the applicable period expiration of the Effectiveness Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented; cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "TIA") not later than the effective date of any Shelf Registration Statement; and in connection therewith, cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the 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 SEC to enable the Indenture to be so qualified in a timely manner.
(c) Notify As promptly as practicable, give notice to the Notice Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible Initial Purchaser (Ai) when a Prospectus or any Prospectus supplement Prospectus, prospectus supplement, Registration Statement or post-effective amendment to the a Registration Statement is proposed to be has been filed (but in no event in with the case of this subparagraph (A)SEC and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the Commission SEC or any other Federal federal or state governmental authority for amendments or supplements to the any Registration Statement or related Prospectus or for additional information; , (iiiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings proceedings for that purpose; , (iiiiv) 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 , (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of a Material Event and (vi) of the determination by the Company that a post-effective amendment to a Registration Statement would be appropriate, which notice may, at the discretion of the Company (or as required pursuant to Section 3(i)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use its best efforts to obtain the withdrawal of any event that makes any statement made in order suspending the effectiveness of a Registration Statement or Prospectus 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.
(e) If reasonably requested by the Initial Purchaser or any document Notice Holder, as promptly as practicable incorporate in a prospectus supplement or post-effective amendment to a Registration Statement such information as the Initial Purchaser or such Notice Holder shall, on the basis of an opinion of nationally-recognized counsel experienced in such matters, determine to be required to be included therein by applicable law and make any required filings of such prospectus supplement or such post-effective amendment; PROVIDED that the Company shall not be required to take any actions under this Section 3(e) that are not, in the reasonable opinion of counsel for the Company, in compliance with applicable law.
(f) As promptly as practicable furnish to each Notice Holder and the Initial Purchaser, without charge, at least one conformed copy of any Registration Statement and any amendment thereto, including exhibits, and all documents incorporated or deemed to be incorporated therein by reference untrue reference.
(g) Deliver to each Notice Holder in connection with any material respect or that requires any revisions sale of Registrable Securities pursuant to the a Registration Statement, without charge, as many copies of the Prospectus relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder may reasonably request; and the Company hereby consents to the use of the Prospectus and each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable Securities, register or qualify or cooperate with the Notice 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 laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); keep each such registration or qualification (or exemption therefrom) effective during the period that a Shelf Registration Statement is required to be effective and do any and all other documents acts or things necessary or advisable to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the applicable Registration Statement and the related Prospectus; PROVIDED that in no event shall the Company be obligated to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be so required to qualify but for this Section 3(h) or (ii) file any general consent to service of process in any jurisdiction where it is not as of the date hereof not so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any fact (a "MATERIAL EVENT") as a result of which any Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the occurrence or existence of any pending corporate development or public filing with the Commission that, in the sole discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, subject to the next sentence, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the Prospectusrelated Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such 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 (except for an untrue statement of a material fact or omission of a material fact made in reliance on and in conformity with written information furnished to the Company by or on behalf of Notice Holders specifically for use therein), as the case may be, it will and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses misleading (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities except for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state omission of a material fact required made in reliance on and in conformity with written information furnished to be stated therein the Company by or necessary on behalf of Notice Holders specifically for use therein), as thereafter delivered to make the statements thereinpurchasers of the Registrable Securities being sold thereunder, and, in the light case of a post-effective amendment to a Registration Statement, subject to the next sentence, use their best efforts to cause it to become effective as promptly as is practicable, and
(ii) give notice to the Notice Holders that the availability of the circumstances Shelf Registration Statement is suspended (a "DEFERRAL NOTICE") and, upon receipt of any Deferral Notice, each Notice Holder shall not sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (z) in the case of clause (C) above, as soon as, in the sole discretion of the Company, such suspension is no longer appropriate. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of the Shelf Registration Statement or any Prospectus, without incurring any obligation to pay liquidated damages pursuant to Section 2(e), no more than one time in any three month period or three times in any twelve month period, and the period during which they were madethe availability of the Registration Statement and any Prospectus is suspended (the "DEFERRAL PERIOD") shall, without incurring any obligation to pay liquidated damages pursuant to Section 2(e), not misleadingexceed thirty days; PROVIDED that in the case of a Material Event relating to (I) an acquisition or a probable acquisition meeting the significance test of Rule 3-05(b)(2)(iv) of Regulation S-X under the Securities Act, (II) a financing or (III) a similar transaction, the Company may, without incurring any obligation to pay liquidated damages pursuant to Section 2(e), deliver to Notice Holders a second certificate to the effect set forth above, which shall have the effect of extending the Deferral Period by up to an additional 30 days, or such shorter period of time as is specified in such second notice; PROVIDED that the aggregate duration of any Deferral Periods shall not, without incurring any obligation to pay liquidated damages pursuant to Section 2(e), exceed 60 days in any three month period or 90 days in any 12 month period.
(j) If requested in connection with a disposition of Registrable Securities pursuant to a Registration Statement, make reasonably available for inspection by the Notice Holders of such Registrable Securities and any broker-dealers, attorneys and accountants retained by such Notice Holders, all relevant financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the executive officers, directors and designated employees of the Company and its subsidiaries to make reasonably available for inspection all relevant information reasonably requested by such Notice Holders or any such broker-dealers, attorneys or accountants in connection with such disposition, in each case as is customary for similar "due diligence" examinations; PROVIDED, that any information that is designated by the Company, in good faith, as confidential at the time of delivery of such information shall be kept confidential by such Notice Holders or any such broker-dealer, attorney or accountant, unless such disclosure is made in connection with a court proceeding or is required by law, or such information becomes available to the public generally or through a third party without an accompanying obligation of confidentiality; PROVIDED, FURTHER, that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of the Notice Holders and the other parties entitled thereto by one counsel designated by and on behalf of such Notice Holders and such other parties reasonably acceptable to the Company.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of the a Registration Statement, which statement statements shall conform cover said 12-month periods.
(l) Cooperate with each Notice Holder to facilitate the requirements timely preparation and delivery of Rule 158certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be in such denominations and registered in such names as such Notice Holder may request.
(m) Request each selling Holder to furnish to Provide a CUSIP number for all Registrable Securities not later than the Company information regarding such Holder effective date of the Initial Shelf Registration Statement and provide the Trustee and the distribution of such Registrable Securities as is required by law or transfer agent for the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration Common Stock with printed certificates for the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementa form eligible for deposit with the Depository Trust Company.
(n) If Provide such information as is required for any filings required to be made with the National Association of Securities Dealers, Inc.
(o) Upon (i) there is material non-public information regarding the Company which filing of the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose Initial Shelf Registration Statement and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition effectiveness of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Initial Shelf Registration Statement, then announce the Company may postpone or suspend filing or effectiveness of a registration statement for a period not same, in each case by release to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)Reuters Economic Services and Bloomberg Business News.
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunderof any Registrable Securities pursuant to Section 2 hereof, the Company shall effect such registrations to permit the sale of such Reg- istrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall:
(ai) Promptly upon request from any Holder of Registrable Securities, the Company will provide a form of Notice and Questionnaire, which must be completed and delivered by such Holder to the Company at least five Business Days before any intended distribution of Registrable Securities under the Shelf Registration Statement. To be named as a selling security holder in the Shelf Registration Statement when it first becomes effective, Holders must complete and deliver the Notice and Questionnaire in substantially the form of Appendix A to the Offering Memorandum dated October 22, 2003 with respect to the initial offering of the Securities before the effectiveness of the Shelf Registration Statement. If the Company receives from a Holder of Registrable Securities a completed Notice and Questionnaire, together with such other information as the Company may reasonably request, after the effectiveness of the Shelf Registration Statement, the Company will file an amendment to the Shelf Registration Statement, or a supplement to the related Prospectus, to permit the Holder to deliver a Prospectus to purchasers of Registrable Securities. Any Holder that does not complete and deliver a Notice and Questionnaire or provide such other information will not be named as a selling security holder in the Prospectus and will not be permitted to sell any Registrable Securities under the applicable Shelf Registration Statement.
(ii) Prepare and file with the Commission SEC on or prior to the Filing DeadlineDate, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)as prescribed by Section 2 hereof, and to use its reasonable best efforts to cause the such Registration Statement to become effective and remain effective as provided herein; provided, howeverprovided that, that not less than three (3) Business Days prior to the before filing of the any Registration Statement or any related Prospectus or any amendment amendments or supplement supplements thereto, the Company shall upon written request from any registered Holder of Registrable Securities (iwhich in the case of Registrable Securities in the form of global certificates shall be The Depository Trust Company ("DTC")) to be covered by such Registration Statement, furnish to the Special Counsel, and afford such Holder 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 (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of . Before filing any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Company will consider any reasonable objections of the Holders of a majority of the in Registrable Securities covered by such Registration Statement or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereofcounsel, unless counsel to the Company determines in writing that such objection is without meritif any.
(ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendmentsamendments to each Shelf Registration Statement, to as the Registration Statement case may be, as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons (other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securitiesduring a Blackout Period); (ii) cause the related Prospectus to be amended or supplemented by any Prospectus supplement required Prospectus supplementby applicable law, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, the Exchange Act and the Exchange Act rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Grey Global Group Inc)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Holders and their Special Counsel, Counsel copies of all such documents proposed to be filed, which filed (including documents (other than those incorporated or deemed incorporated by reference) which documents will be subject to the review of such Holders and their Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holdersrespective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the and their Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin ten days, to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the their Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the their Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the their Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the their Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, howeverPROVIDED, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(ih) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required requested by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)controlling person thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Wilsons the Leather Experts Inc)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Days business days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement theretoStatement, the Company shall shall, (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business within 15 Trading Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than two business days prior to such filing) and (if requested by any such Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such the Registration Statement and whenever the Commission comments in writing on such the Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and request in connection with resales by the Holder of Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving on any notice pursuant to Section 3(c).
(hg) Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration the Registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then in force) Commission, the deletion of person thereof that has voting and dispositive control over the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be requiredShares. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from to reasonably cooperate with the Company in the preparation of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) and response by the Company that to any comments by the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementCommission.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Neutron Enterprises Inc)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) five Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall shall, (i) furnish to the Holders and their Special Counsel, Counsel copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders and their Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the and their Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin ten days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) File additional Registration Statements if the number of Registrable Securities at any time exceeds 85% of the number of shares of Common Stock then registered in a Registration Statement. The Company shall have twenty-five days to file such additional Registration Statements after such requirement notice of which is given by the Holders.
(d) Notify the Holders of Registrable Securities to be sold and the their Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than five Business Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Business Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus Pro spectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) if at any time any of the representations and warranties of the Company contained in any agreement contemplated hereby ceases to be true and correct in all material respects; (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (ivvi) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(de) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the their Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the their Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the their Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, howeverPROVIDED, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(d)(vi), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(ml) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required requested by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)controlling person thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Horizon Pharmacies Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunderTrigen will, the Company shallas expeditiously as practicable:
(a) Prepare prepare and file with a Registration Statement as soon as practicable after the Commission on or Closing Date, but in any event prior to the Filing Deadline, a Registration Statement on Form S-3 (or if Date and use its best efforts to cause such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare prepare and file with the Commission such amendments, including post-amendments and post effective amendments, to the Registration Statement amendments as may be necessary to keep the each Registration Statement continuously effective for such period as to the applicable Registrable Securities required for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities Trigen Shares to be sold and the Special Counsel prior to filing any thereof provide TCW and its counsel with an opportunity to review all documents to be filed, which review will be effected as promptly as possible practicable;
(Ab) notify TCW and its counsel promptly when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendmentamendment has become effective, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or a Prospectus or for additional information; (ii) supplement or amendment has been filed, of the issuance by the Commission 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 proceedings for that purpose; (iii) , of receipt of notice of suspension of qualification in any jurisdiction and 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence happening of any event that which makes any statement made in the Registration Statement untrue or Prospectus or which requires the making of any document incorporated or deemed to be incorporated therein by reference untrue changes in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, 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 in order to make the statements therein, in the light therein not misleading;
(c) deliver to TCW and its counsel one signed copy of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements thereto and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of preliminary prospectus) and each any amendment or supplement thereto as such Persons may be reasonably request; requested and the Company hereby consents consent to the their use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.Trigen Shares;
(hd) Prior prior to any the public offering of Registrable SecuritiesTrigen Shares, use its best efforts to register or qualify qualify, or cooperate with the selling Holders TCW and the Special Counsel its counsel in connection with the registration or qualification (or exemption from of, such registration or qualification) of such Registrable Securities Trigen Shares for offer and sale under the securities or Blue Sky blue sky laws of such jurisdictions within as appropriate, and maintain the United States as any Holder requests in writing, to keep each effectiveness of such registration or qualification (or exemption therefrom) effective during the Effectiveness Period for such period as required for all Trigen Shares to be sold, and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration StatementTrigen Shares; provided, however, provided that the Company shall Trigen 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.;
(ie) Cooperate with use its best efforts to cause the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities Trigen Shares to be sold pursuant to a Registration Statement, which certificates shall registered with or approved by such other governmental agencies or authorities as may be free, to necessary by virtue of the extent permitted by applicable law business and the Purchase Agreement, operations of all restrictive legends, and Trigen to enable the buyers thereof to consummate the disposition of such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two Trigen Shares,
(2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafterf) cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with all Trigen Shares covered by any other authorizations, certificates and directions 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 under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.;
(lg) Comply to the extent reasonably required for the satisfaction of any due diligence obligations, make available for inspection by TCW, all financial and other records, pertinent corporate documents and properties of Trigen; provided that any records, information or documents that are designated by Trigen in all material respects writing as confidential shall be kept confidential by TCW unless disclosure of such records, information or documents is required by court or administrative order or any regulatory body having jurisdiction or they become public without violation by TCW of its obligation hereunder;
(h) comply with all applicable rules and regulations of the Securities and Exchange Commission 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 not thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company Trigen after the effective date of the a Registration Statement, which statement statements shall conform to the requirements of Rule 158.cover said 12-month periods; and
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described that makes any statement made in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the a Registration Statement until such Holder’s receipt of the copies of the supplemented or related Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in such Registration Statement, Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be documents so that, in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition case of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then 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 Company may postpone statements therein, not misleading, and that in the case of the Prospectus, it will not contain any untrue statement of a material fact or suspend filing omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, as promptly as practicable prepare a supplement or post-effective amendment to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Trigen Shares being sold thereunder, such Prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. If notified of any suspension of effectiveness of a registration statement the Registration Statement or of the qualification of Trigen Shares for a period not sale, TCW agrees that, upon receipt of such notice, TCW will discontinue disposition pursuant to exceed 30 consecutive daysthe Registration Statement until receipt of copies of the supplemented or amended Prospectus, provided or until advised in writing by Trigen that the Company use of the Prospectus may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)be resumed.
Appears in 1 contract
Samples: Stock Transfer and Shareholders Agreement (Trigen Energy Corp)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Holders and their Special Counsel, Counsel copies of all such documents proposed to be filed, which filed (including documents (other than those incorporated or deemed incorporated by reference) which documents will be subject to the review of such Holders and their Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the and their Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the their Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than two Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such the Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to Special Counsel); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions amendment or supplement to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the their Special Counsel, without charge, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the their Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the their Special 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 laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, howeverPROVIDED, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(jh) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(li) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available Commission, the failure to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is comply with which would have a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Material Adverse Effect.
(mj) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder, whether now or during the last three years the Holder has held or holds any position, office or has other material relationship with the Company or any of its affiliates, and if requested by the distribution Commission, the controlling person of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (American Science & Engineering Inc)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not a. Not less than three five (35) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Special Counsel, Holders owning Registrable Securities registered under such Registration Statement copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the any such Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel registered thereunder shall reasonably object in good faith, provided that the Company is notified of such objection in writing within three no later than five (35) Business Trading Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritHolders have been so furnished copies of such documents.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and a Prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the applicable Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the such Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the such Registration Statement; and (iv) comply in all material respects during the applicable Effectiveness Period with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the such Registration Statement during the applicable period in accordance with the Holders' intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) c. Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Ai)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such a Registration Statement and whenever the Commission comments in writing on such a Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of a Registration Statement for amendments or supplements to the such Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the such Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in of which the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case Company has knowledge as a result of the Registration Statement or the which a Prospectus, as the case may bethen in effect, it will not contain contains any 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, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) d. Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas promptly as reasonably practicable.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) e. Furnish to each Holder and the Special CounselHolder, without charge, at least one (1) conformed copy of each Registration Statement registering Registrable Securities held by such Holder and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested in writing by such Person, and all exhibits to the extent requested by such Person in writing (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) f. Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and request in connection with resales by the Holder of Registrable Securities. Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(h) g. Prior to any public offering resale of Registrable SecuritiesSecurities by a Holder, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the applicable Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(i) Cooperate h. If requested in writing by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the applicable Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(j) i. Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the applicable Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the such Registration Statement nor such the Prospectus included therein will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (v) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its commercially reasonable efforts to ensure that the use of a Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and the applicable Prospectus, subject to the payment of liquidated damages pursuant to Section 2(b), for a period not to exceed sixty (60) Trading Days (which need not be consecutive days) in any twelve (12) month period.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) j. Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
k. The Company may require each Holder, upon three (m3) Request each selling Holder Trading Days' notice, to furnish to the Company information regarding a certified statement as to, among other things, the number of shares of Common Stock beneficially owned by such Holder and the distribution of person that has voting and dispositive control over such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration StatementShares.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, furnish via email to those Investors who have supplied the Company shall (i) furnish to the Special Counsel, with email addresses copies of all such documents proposed to be filed, which documents (other than those any document that is incorporated or deemed to be incorporated by referencereference therein) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities ActInvestors. The Company shall not file reflect in each such document when so filed with the Registration Statement or any SEC such Prospectus or any amendments or supplements thereto to which comments regarding the Holders Investors and the plan of a majority of distribution as the Registrable Securities or the Special Counsel shall Investors may reasonably object in writing within three (3) Business and promptly propose no later than two Trading Days after their receipt thereof, unless counsel to the Company determines in writing that Investors have been so furnished with copies of such objection is without meritdocuments as aforesaid.
(i) Prepare Subject to Section 6.1(e), prepare and file with the Commission SEC such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin twelve (12) Trading Days (except to the extent that the Company reasonably requires additional time to respond to accounting comments), to any comments received from the Commission SEC with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statementthereto; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Investors thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel Investors as promptly as possible reasonably possible, and (Aif requested by the Investors confirm such notice in writing no later than two Trading Days thereafter, of any of the following events: (i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission SEC notifies the Company whether there will be a “review” of such any Registration Statement and whenever Statement; (ii) the Commission SEC comments in writing on such any Registration Statement; and (Ciii) with respect to the any Registration Statement or any post-effective amendment, when amendment is declared effective; (iv) the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission SEC or any other Federal or state governmental authority for amendments requests any amendment or supplements supplement to the any Registration Statement or Prospectus or for requests additional informationinformation related thereto; (iiv) of the issuance by the Commission of SEC issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiivi) of the receipt by the Company receives notice 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 threat of any Proceeding for such purpose; and or (ivvii) if the financial statements included in the any Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any other document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain contains any untrue statement of a material fact or omit 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. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable momentas soon as possible.
(e) If requested by any Holder of Registrable Securitiesan Investor, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement provide such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, Investor without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the CommissionSEC.
(gf) Promptly deliver to each Holder and the Special CounselInvestor, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Investors in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto to the extent permitted by federal and state securities laws and regulations.
(g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all steps necessary to cause such Common Shares to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to each Investor evidence of such listing; and (iv) except as a result of the Excluded Events, during the Effectiveness Period, maintain the listing of such Common Shares on each such Trading Market or another Eligible Market.
(h) Prior to any public offering of Registrable Securities, use its best efforts Best Efforts to register or qualify or cooperate with the selling Holders and the Special Counsel Investors 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 Holder Investor requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during for so long as required, but not to exceed the duration of the Effectiveness Period Period, and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required obligated to file any general consent to service of process or to qualify generally as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to do subject itself to taxation in respect of doing business in any jurisdiction where in which it is not then so qualified or to take any action that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then otherwise so subject.
(i) Cooperate with the Holders Investors 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, to the extent permitted by applicable law this Agreement and the Purchase Agreementunder law, of all restrictive legends, and to enable such Registrable Securities certificates to be in such denominations and registered in such names as any Holder such Investors may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementreasonably request.
(j) Upon the occurrence of any event contemplated by described in Section 3(c)(C)(iii) or (iv6.2(c)(vii), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Cooperate with any reasonable due diligence investigation undertaken by the Investors in connection with the sale of Registrable Securities relating Securities, including, without limitation, by making available documents and information; provided that the Company will not deliver or make available to any Investor material, nonpublic information unless such Registration Statement Investor requests in advance in writing to be listed on the New York Stock Exchangereceive material, the American Stock Exchange or the Nasdaq Stock Marketnonpublic information and agrees to keep such information confidential.
(l) Comply with all rules and regulations of the SEC applicable to the registration of the Securities.
(m) It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of any particular Investor or to make any Event Payments set forth in all material respects Section 6.1(c) to such Investor that such Investor furnish to the Company the information specified in Exhibits X-0, X-0 and B-3 hereto and such other information regarding itself, the Registrable Securities and other shares of Common Stock held by it and the intended method of disposition of the Registrable Securities held by it (if different from the Plan of Distribution set forth on Exhibit D hereto) as shall be reasonably required to effect the registration of such Registrable Securities and shall complete and execute such documents in connection with such registration as the Company may reasonably request.
(n) The Company shall comply with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of SEC under the Securities Act and the Exchange Act, including, without limitation, Rule 158 not later than 45 days after 172 under the end of Securities Act, file any 3-month period (final Prospectus, including any supplement or 90 days after amendment thereof, with the end of SEC pursuant to Rule 424 under the Securities Act, promptly inform the Investors in writing if, at any 12-month period if such period is a fiscal year) commencing on time during the first day of the first fiscal quarter of Effectiveness Period, the Company after does not satisfy the effective date conditions specified in Rule 172 and, as a result thereof, the Investors are required to make available a Prospectus in connection with any disposition of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities and take such other actions as is required by law or may be reasonably necessary to facilitate the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration of the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementhereunder.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with Whenever any Holder has requested that any Registrable Securities be registered pursuant to this Annex A, the Company’s Company will use its reasonable best efforts to effect the registration obligations hereunder, of such Registrable Securities and in furtherance thereof the Company shall:
(a) Prepare prepare and file with the Commission on or prior any appropriate form under the Securities Act with respect to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available Registrable Securities and use its commercially reasonable efforts to the Company on another form appropriate for cause such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.effective;
(ib) Prepare prepare and file with the Commission such amendments, including post-effective amendments, amendments and supplements to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for a period of not less than 180 days (or such lesser period as is necessary for the Effectiveness Period underwriters in an underwritten offering to sell unsold allotments) and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, possible to any comments received from the Commission with respect to the Registration Statement Statements or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration StatementStatements; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement Statements during the applicable period in accordance with the intended methods of disposition by the Holders Stockholders thereof set forth in the Registration Statement Statements as so amended or in such Prospectus as so supplemented.;
(ci) Notify furnish to the Holders of Registrable Securities to be sold sold, their counsel and any managing underwriters, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the Special Counsel review of such Stockholders, their counsel and such managing underwriters, and (ii) cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders and such underwriters, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement to which the holder of a majority of the Registrable Securities or its counsel or any managing underwriters shall reasonably object in writing within three (3) Business Days of their receipt thereof;
(d) notify the Holders of Registrable Securities to be sold, their counsel and any managing underwriters as promptly as possible (Aand in the case of (i), below, not less than five (5) days prior to such filing) and confirm such notice in writing no later than one (1) Business Day following the day:
(i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement Statements is proposed to be filed filed;
(but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (Bii) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement Statements and whenever the Commission comments in writing on such Registration Statement; and Statements;
(Ciii) with respect to the Registration Statement Statements or any post-effective amendment, when the same has become effective effective;
(which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiv) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement Statements or Prospectus or for additional information; ;
(iiv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement Statements covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; ;
(iiivi) if at any time any of the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated hereby ceases to be true and correct in all material respects;
(vii) 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 and
(ivviii) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement Statements or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration StatementStatements, Prospectus or other documents so that, in the case of the Registration Statement Statements or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.;
(de) Use use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statements or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.;
(ef) If if requested by any Holder of Registrable Securitiesmanaging underwriter to be sold in connection with an Underwritten Offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(eclause (f) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel)Company, violate applicable law.law or be materially detrimental to the business prospects of the Company;
(fg) Furnish furnish to each Holder of Registrable Securities to be sold, their counsel and the Special Counselany managing underwriters, without charge, at least one conformed copy of each Registration Statement Statements and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.;
(gh) Promptly promptly deliver to each Holder of Registrable Securities to be sold, their counsel, and the Special Counselany underwriters, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Stockholders and any underwriters in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.;
(hi) Prior prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Holders, any underwriters and the Special Counsel their 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 laws of such jurisdictions within the United States as any selling Holder or underwriter requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period for at least 180 days and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any such jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.;
(ij) Cooperate cooperate with the selling Holders and any managing underwriters to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration StatementStatements, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreementlaw, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such managing underwriters or Stockholders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.;
(jk) Upon upon the occurrence of any event contemplated by Section 3(c)(C)(iii4(d)(viii) or (iv)of this Annex A, as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement Statements nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.;
(kl) Cause use its best efforts to cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchangesecurities exchange, quotation system, market or over-the-counter bulletin board on which similar securities issued by the Company are then listed;
(m) enter into such agreements (including an underwriting agreement in form, scope and substance as is customary in Underwritten Offerings) and take all such other actions in connection therewith (including those reasonably requested by any managing underwriters in order to expedite or facilitate the disposition of such Registrable Securities, and whether or not an underwriting agreement is entered into):
(i) make such representations and warranties to such selling Holders and such underwriters as are customarily made by issuers to underwriters in underwritten public offerings, and confirm the same if and when requested;
(ii) in the case of an Underwritten Offering, obtain and deliver copies thereof to the managing underwriters, if any, of opinions of counsel to the Company and updates thereof addressed to each such underwriter, in form, scope and substance reasonably satisfactory to any such managing underwriters and counsel to the selling Stockholders covering the matters customarily covered in opinions requested in Underwritten Offerings and such other matters as may be reasonably requested by such counsel and underwriters;
(iii) immediately prior to the effectiveness of the Registration Statement, and, in the case of an Underwritten Offering, at the time of delivery of any Registrable Securities sold pursuant thereto, obtain and deliver copies to the selling Holders and the managing underwriters, if any, of "cold comfort" letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent 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 Statements), addressed to each selling Holder and each of the underwriters, if any, in form and substance as are customary in connection with Underwritten Offerings;
(iv) if an underwriting agreement is entered into, the American Stock Exchange same shall contain indemnification provisions and procedures no less favorable to the selling Holders and the underwriters, if any, other than those set forth in Section 8 of this Annex A (or such other provisions and procedures acceptable to the Nasdaq Stock Market.managing underwriters, if any; and
(lv) Comply deliver such documents and certificates as may be reasonably requested by the selling Holders, their counsel and any managing underwriters to evidence the continued validity of the representations and warranties made pursuant to clause (i) above and to evidence compliance with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company;
(n) make available for inspection by the selling Holders, any representative of such Holders, any underwriter participating in any disposition of Registrable Securities, and any attorney or accountant retained by such selling Holder or underwriters, at the offices where normally kept, during reasonable business hours, all financial and other records, pertinent corporate documents and properties of the Company and its subsidiaries, and cause the officers, directors, agents and employees of the Company and its subsidiaries to supply all information in each case reasonably requested by any such Holder, representative, underwriter, attorney or accountant in connection with the Registration Statements; provided, however, that any information that is determined in good faith by the Company in writing to be of a confidential nature at the time of delivery of such information shall be kept confidential by such Persons, unless (i) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities; (ii) disclosure of such information, in the opinion of counsel to such Person, is required by law; (iii) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard by such Person; or (iv) such information becomes available to such Person from a source other than the Company and such source is not known by such Person to be bound by a confidentiality agreement with the Company;
(o) comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) (i) 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 and (ii) if not sold to underwriters in such an offering, commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration StatementStatements, which statement shall conform to the requirements of Rule 158.;
(mp) Request the Company may require each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration StatementStatements, and the Company may exclude from such registration the Registrable Securities of any such Holder Stockholder who unreasonably fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statementafter receiving such request. If the Registration Statement Statements refers to any Holder Stockholder by name or otherwise as the holder of any securities of the Company, then such Holder Stockholder shall have the right to require (if such reference to such Holder Stockholder by name or otherwise is not required by the Securities Act or any similar federal Federal statute then in force) the deletion of the reference to such Holder Stockholder in any amendment or supplement to the Registration Statement Statements filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunder, The procedures to be followed by the Company shalland each selling Holder, and the respective rights and obligations of the Company and such Holders, with respect to the preparation, filing and effectiveness of the Registration Statement, and the distribution of Registrable Securities pursuant thereto, are as follows:
(a) Prepare and file with the Commission on or prior to the Filing DeadlineThe Company will, a Registration Statement on Form S-3 at least five (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith5) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement theretothereto (other than any amendment or supplement made through the incorporation by reference of ordinary course Exchange Act filings), the Company shall (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the reasonable review of such Special Counsel, Holders and (ii) at use its commercially reasonable efforts to address in each such document when so filed with the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to Commission such inquiries comments as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel reasonably shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritpropose.
(b) The Company will use commercially reasonable efforts to (i) Prepare prepare and file with the Commission such amendments, including post-effective amendments, and supplements to the Registration Statement and the Prospectus used in connection therewith as may be necessary under applicable law with respect to keep the disposition of all Registrable Securities covered by such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securitiesprepare; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; and (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to the Registration Statement; Holders as selling securityholders but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Company.
(ivc) The Company will comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statement and the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplementedStatement.
(cd) Notify The Company will notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; and (iiiii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(de) Use its best efforts to avoid the issuance of, or, if issued, The Company will use best commercially reasonable efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdictionStatement, at the earliest practicable moment.
(ef) If requested by any Holder of Registrable SecuritiesDuring the Effectiveness Period, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish will furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, thereto and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that the Company will not have any obligation to provide any document pursuant to this clause that is available on the EXXXX system.
(g) Promptly The Company will promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the each Prospectus or Prospectuses (including each form of prospectus) and each other than any amendment or supplement thereto made through the incorporation by reference of ordinary course Exchange Act filings) as such Persons may reasonably request; and request during the Effectiveness Period. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto in accordance with this Agreement.
(h) Prior The Company will, prior to any public offering of Registrable Securities, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special 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 applicable state securities or Blue Sky blue sky laws of such those jurisdictions within the United States as any Holder reasonably requests in writing, writing to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and use its commercially reasonable efforts to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, that the Company shall will not be required to (i) qualify generally to do business or as a dealer in securities in any jurisdiction where it is not then so qualified or to (ii) take any action that which would subject it the Company to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate The Company will cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, free of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securitiesin writing. In connection therewith, if required by the Company’s transfer agent, the Company shall will promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel as to the effectiveness of the Registration Statement to be delivered to and maintained with its transfer agentagent when and as required by such transfer agent from time to time, together with any other authorizations, certificates and directions required by the transfer agent, agent which authorize and direct the transfer agent to issue such Registrable Securities without legend upon sale by the Holder holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) The Company will use commercially reasonable efforts to prepare such supplements or (iv), as promptly as possible, prepare a supplement or amendmentamendments, including a post-effective amendment, if required by applicable law, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so thatthat such Registration Statement will be Available at all times during the Effectiveness Period. No later than 8:00 p.m. (Eastern Time) on any Trading Day on which the Company receives a written notice (a “Use Notice”) prior to 2:00 p.m. (Eastern Time) on such Trading Day (or if such request is received after 2:00 p.m. (Eastern Time), as thereafter delivered, neither no later than 8:00 p.m. (Eastern Time) on the following Trading Day) from a Holder that such Holder intends to use the Registration Statement nor to resell Registrable Securities, the Company will provide written confirmation to such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make Holder that the statements therein, in the light of the circumstances under which they were made, not misleadingapplicable Registration Statement is Available.
(k) Cause all Notwithstanding any other provision of the Agreement, no Holder of Registrable Securities relating to such may include any of its Registrable Securities in the Registration Statement pursuant to be listed on this Agreement unless the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish furnishes to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed a completed questionnaire substantially in the form of Exhibit A (the “Questionnaire”) for use in connection with the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time Statement prior to the filing of each the Registration Statement; provided, supplemented Prospectus and/or amended Registration Statement. If however, Investor shall not be required to furnish a Questionnaire in connection with the Registration Statement refers to any Holder if such Investor owns Notes or Warrants initially purchased by name or otherwise such Investor at the Closing as the holder of any securities of the Company, then such initial Filing Date. Each Holder shall have the right who intends to require (if such reference to such Holder by name or otherwise is not required by the include any of its Registrable Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from shall promptly furnish the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public other information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then as the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days reasonably request in the aggregate during any 12 month period (each, a “Blackout Period”)writing.
Appears in 1 contract
Samples: Registration Rights Agreement (Deep Medicine Acquisition Corp.)
Registration Procedures. In connection with Upon the Company’s receipt of a request for registration obligations hereunderof any Registrable Securities pursuant to Section 2, Section 3 or Section 4 of this Agreement, the Company shallwill use its reasonable best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof, and pursuant thereto the Company will as expeditiously as possible:
(a) 12.1.1 Prepare and file with the Commission on or prior to the Filing Deadline, SEC a Registration Statement on Form S-3 (or if an appropriate form under the Securities Act and use its reasonable best efforts to cause such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as at the earliest practicable date, provided herein; provided, however, that not less than three (3) Business Days prior to the before filing of the a Registration Statement or any related Prospectus prospectus or any amendment amendments or supplement supplements thereto, the Company shall (i) will promptly furnish to the Special Counselholders of Registrable Securities 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 (other than those incorporated by reference) will be subject to the review of such Special Counselthe Registered Holders and the underwriters, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall will not file the any Registration Statement or any such Prospectus amendment thereto, or any amendments prospectus or supplements any supplement thereto (other than documents incorporated by reference) to which the Registered Holders of a majority of the Registrable Securities or the Special Counsel underwriters, if any, shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to light of the Company determines in writing that such objection is without meritrequirements of the Securities Act and any other applicable laws and regulations.
(i) 12.1.2 Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement effective for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securitiesapplicable period; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended prospectus to be filed pursuant to Rule 424 424(b) (or any similar provisions then in forcesuccessor provision) promulgated under the Securities Act; (iii) respond cause such prospectus to be supplemented by any required prospectus supplement and, as promptly as possible, and in no event later than 10 Business Daysso supplemented, to any comments received from the Commission with respect be filed pursuant to the Registration Statement Rule 424(b) (or any amendment thereto and as promptly as possible provide successor provision) under the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration StatementSecurities Act; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities securities covered by the such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in prospectus or supplement to such Prospectus as so supplementedprospectus.
(c) 12.1.3 Notify the Registered Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible managing underwriters, if any, promptly, and (Aif requested by any such Person) confirm such advice in writing, (i) when a Prospectus prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority SEC for amendments or supplements to the a Registration Statement or Prospectus related prospectus or for additional information; , (iiiii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings proceeding for that purpose; , (iiiiv) if at any time the representations and warranties of the Company contemplated by Section 12.1.10 cease to be true and correct, (v) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, jurisdiction or the initiation or threatening of any Proceeding proceeding for such purpose; and , (ivvi) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence happening of any event that makes requires the making of any statement made changes in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or related prospectus so that requires any revisions to the Registration Statement, Prospectus or other such documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light therein not 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 that make further sales under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to such Registration Statement inadvisable pending such disclosures and correct the eventpost-effective amendment.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best 12.1.4 Make reasonable efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of a Registration Statement, or the Registration Statement or (ii) 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 practicable momentas soon as practicable.
(e) 12.1.5 If requested by any Holder of Registrable Securitiesthe managing underwriters or the Registered Holders in connection with an underwritten offering, (i) promptly immediately incorporate in a Prospectus prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees managing underwriters and the Registered Holders agree should be included therein regarding the number of Registrable Securities being sold to such underwriters and the purchase price being paid therefor by such underwriters and with respect to any other terms of the underwritten (iior best efforts underwritten) offering of the Registrable Securities to be sold in such offering; make all required filings of such Prospectus prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification notified of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment; providedand supplement or make amendments to any Registration Statement if requested by the Registered Holders or any underwriter of such Registrable Securities.
12.1.6 If requested, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed furnish to the Special Counsel)Registered Holders and each managing underwriter, violate applicable law.
(f) Furnish to each Holder and the Special Counselif any, without charge, at least one conformed signed copy of each the Registration Statement and each Statement, any post-effective amendment thereto, including financial statements and schedules, all documents incorporated therein by reference and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission).
(g) Promptly deliver 12.1.7 Deliver without charge to each Holder the Registered Holders and the Special Counselunderwriters, without chargeif any, as many copies of the Prospectus prospectus or Prospectuses prospectuses (including each form of preliminary prospectus) and each any amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each prospectus or any amendment or supplement thereto by each of such Registered Holders and the selling Holders underwriters, if any, in connection with the offering offer and sale of the Registrable Securities covered by such Prospectus and prospectus or any amendment or supplement thereto.
(h) 12.1.8 Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Registered Holders, the underwriters, if any, and the Special Counsel 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 laws of such jurisdictions within as the United States as any Holder Registered Holders or an underwriter reasonably requests in writing, to ; keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period period the Registration Statement is required to be kept effective and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the applicable Registration Statement; provided, however, that the Company shall 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 that would subject it itself to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) 12.1.9 Upon the occurrence of any event contemplated by Section 3(c)(C)(iii12.1.3(ii)-(vii) or (iv)above, as promptly as possibleprepare, prepare to the extent required, a supplement or amendment, including a post-effective amendment, amendment to the applicable Registration Statement or a supplement to the related Prospectus prospectus or any document incorporated or deemed to be incorporated therein by reference, and reference or file any other required document so that, as thereafter delivereddelivered to the purchaser of the Registrable Securities being sold thereunder, neither the Registration Statement nor such Prospectus prospectus will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all 12.1.10 If the Registrable Securities relating to be covered by such registration are to be offered in an underwritten offering: (i) make such representations and warranties to the Registered Holders as to the Registration Statement, prospectus and documents incorporated by reference, if any, in form, substance and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the same if and when requested; (ii) 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 that are customarily delivered in underwritten offerings; (iii) enter into an underwriting agreement in form, scope and substance as is customary in underwritten offerings; (iv) obtain comfort letters and updates thereof from the Company’s independent certified public accountants addressed to the Registered Holders and the underwriters, if any, such letters to be in customary form and covering matters of the type customarily covered in comfort letters by accountants in connection with underwritten offerings; (v) cause the underwriting agreement to include indemnification provisions and procedures customarily included in underwriting agreements in underwritten offerings; and (vi) the Company shall deliver such documents and certificates as may be requested by the Registered Holders and the managing underwriters, if any, to evidence compliance with clause (i) 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.
12.1.11 Make available for inspection by a representative of the Registered Holders, any underwriter participating in any disposition pursuant to such Registration Statement registration, and any attorney or accountant retained by the Registered Holders or such 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, however, that any records, information or documents that are designated by the Company in writing as confidential shall be listed on the New York Stock Exchangekept confidential by such Persons unless disclosures of such records, the American Stock Exchange information or the Nasdaq Stock Marketdocuments is required by court or administrative order.
(l) Comply in all material respects 12.1.12 Otherwise use its reasonable best efforts to comply with all applicable rules and regulations of the Commission SEC and make generally available to its security holders earnings earning statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not thereunder, no later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year(i) commencing on at the end of any fiscal quarter in which Registrable Securities are sold to underwriters in a firm or best efforts underwritten offering and (ii) beginning with the first day of the Company’s first fiscal quarter next succeeding each sale of the Company Registrable Securities after the effective date of the a Registration Statement, which statement statements shall conform to cover said 12-month periods, and which requirement shall be satisfied if the requirements of Rule 158Company timely files complete and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange Act.
(m) Request each selling Holder 12.1.13 Use its reasonable best efforts to furnish to the Company information regarding such Holder and the distribution of such list all Registrable Securities as is required covered by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to on the NYSE MKT and any Holder by name other securities exchange or otherwise as trading market on which any of the holder of any equity securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence same class as the Registrable Securities are then listed.
12.1.14 At all times during the term of any event this Agreement, maintain the effectiveness of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition registration of such the Registrable Securities 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.
12.1.15 If the Company, in the exercise of its reasonable judgment, objects to any change requested by the Registered Holders or the underwriters, if any, to any Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing prospectus or any amendments or supplements thereto (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are including documents incorporated or deemed to be incorporated therein by reference reference) as provided for in this Section12, the Company shall not be obligated to make any such Prospectus or Registration Statement.
(n) If change and such Registered Holders may withdraw their Registrable Securities from such registration, in which event (i) there is material non-public information regarding the Company which the Company’s Board of Directors shall pay all registration expenses (the “Board”including its counsel fees and expenses) reasonably determines not to be incurred in connection with such Registration Statement or amendment thereto or prospectus or supplement thereto, and (ii) in the Company’s best interest case of a Demand Registration being effected pursuant to disclose and which Section 2, such registration shall not count as one of the Demand Registrations the Company is not otherwise required obligated to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available effect pursuant to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)2.
Appears in 1 contract
Samples: Registration Rights Agreement (Earthstone Energy Inc)
Registration Procedures. In connection with the CompanyBorrower Representative’s registration obligations hereunder, the Company Borrower Representative shall:
(a) 2.1 Prepare and file with the Commission SEC on or prior to the Filing DeadlineDate, a Registration Statement on Form S-3 (or if such form Borrower Representative is not available then eligible to register for resale the Company Registrable Securities on Form S-3 such registration shall be on another appropriate form appropriate for such registration in accordance herewithwith the Securities Act and the rules and regulations promulgated thereunder) in accordance with the method or methods of distribution thereof as described on Annex A hereto (which shall include a Plan of Distribution substantially in the form of Exhibit A attached heretoexcept if otherwise directed by Administrative Agent), and use commercially reasonable efforts to cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) 2.2 Prepare and file with the Commission SEC such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective (subject to Section 2.12) as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission SEC such additional Registration Statements Statements, if necessary, in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission SEC with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission SEC relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify 2.3 Promptly notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (Ai)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission SEC notifies the Company Borrower Representative whether there will be a “review” of such Registration Statement and whenever the Commission SEC comments in writing on such Registration Statement, and if requested by such Holders, furnish to them a copy of such comments and Borrower Representative’s responses thereto; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission SEC or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission SEC 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; (iiiiv) of the receipt by the Company Borrower Representative 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) 2.4 Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any U.S. jurisdiction, at the earliest practicable moment.
(e) 2.5 If requested by any Holder the Administrative Agent on behalf of Registrable SecuritiesDesignated Holders, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company Borrower Representative reasonably agrees should 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 Borrower Representative has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) 2.6 Furnish to each Holder and the Special CounselHolder, without chargecharge and upon request, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits and, to the extent requested by such Person Person, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the CommissionSEC.
(g) 2.7 Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company Borrower Representative hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) 2.8 Prior to any public offering of Registrable Securities, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company Borrower Representative shall not in no event be required to (x) qualify generally to do business in any jurisdiction state where it is not then so qualified or to (y) take any action that would subject it to tax or to the general service of process in any jurisdiction such state where it is not then so subject subject, or subject the Company (z) comply with state securities or “blue sky” laws of any state for which registration by coordination is unavailable to any material tax in any such jurisdiction where it is not then so subjectBorrower Representative.
(i) 2.9 Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) 2.10 Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv2.3(v), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause 2.11 Use commercially reasonable efforts to cause all Registrable Securities relating to such the Registration Statement to be listed on the New York Nasdaq Stock ExchangeMarket or any subsequent securities exchange, quotation system or market, if any, on which similar securities issued by Borrower Representative are then listed or traded; provided, however, that nothing in the American Section 2.11 shall require Borrow Representative to continue to list its Common Stock Exchange or on the Nasdaq Stock MarketMarket and be a reporting company pursuant to Section 13 of the Exchange Act.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request 2.12 Borrower Representative may require each selling Holder to furnish to the Company Borrower Representative information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company Borrower Representative may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information within fifteen (15) days after receiving such request. Each Holder covenants and agrees that (i) it will not sell any Registrable Securities under the Registration Statement until it has received copies of the Prospectus as then amended or supplemented as contemplated in Section 2.7 and notice from Borrower Representative that such Registration Statement and any post-effective amendments thereto have become effective as contemplated by Section 2.3 and (ii) to agree to furnishit and its officers, upon requestdirectors or Affiliates, such additional information regarding such Holder as may later be required by law to be disclosedif any, in each case, within a reasonable time prior to will comply with the filing prospectus delivery requirements of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then as applicable to them in force) the deletion connection with sales of the reference to such Holder in any amendment or supplement Registrable Securities pursuant to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be requiredStatement. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company Borrower Representative of the occurrence of any event of the kind described in Section 3(c)(iSections 2.3(ii), 3(c)(ii(iii), 3(c)(iii(iv), 3(c)(iv(v) or 3(n)2.13, such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j)2.10, or until it is advised in writing (the “Advice”) by the Company Borrower Representative that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) 2.13 If (i) there is material non-public information regarding the Company Borrower Representative which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the CompanyBorrower Representative’s best interest to disclose and which the Company Borrower Representative is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company Borrower Representative which the Board reasonably determines not to be in the CompanyBorrower Representative’s best interest to disclose and which the Company would be required to disclose under the Registration Statementdisclose, then the Company Borrower Representative may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 thirty (30) consecutive days, provided that the Company Borrower Representative may not postpone or suspend its obligation under this Section 3(n) 2.13 for more than 60 sixty (60) days in the aggregate during any 12 month period period; provided, however, that no such postponement or suspension shall be permitted for consecutive thirty (each30) day periods, arising out of the same set of facts, circumstances or transactions.
2.14 Any legend indicating, directly or indirectly, that the Registrable Securities constitute “restricted securities” (as such term is defined in Rule 144) stamped on a “Blackout Period”certificate evidencing the Registrable Securities, and the related stock transfer instructions and record notations with respect to such Registrable Securities, shall be removed and Borrower Representative shall approve the issuance of a certificate without such legend to the holder of such Securities if the Holder thereof provides Borrower Representative with reasonable assurances that such securities can be sold pursuant to Rule 144. Following the receipt by Borrower Representative of such assurances, Borrower Representative will, no later than five trading days following the delivery by a holder to Borrower Representative or Borrower Representative’s transfer agent of a legended certificate representing such securities, deliver or cause to be delivered to such Holder a certificate representing such securities that is free from all restrictive and other legends.
2.15 If a Registration Statement is not effective with respect to all of the Registrable Securities and Borrower Representative decides to register any of its securities for its own account or for the account of others (if the agreement pursuant to which such securities are being registered for the account of others so allows), then Borrower Representative will use its commercially reasonable efforts to include in such registration all or any part of the Registrable Securities requested by Administrative Agent on behalf of Holders to be included therein (excluding any Registrable Securities previously included in a Registration Statement). This requirement does not apply to Company registrations on Form S-4 or S-8 or their equivalents (relating to equity securities to be issued in connection with an acquisition of any entity or business or equity securities issuable in connection with stock option or other employee benefit plans) or to registration statements that would otherwise not permit the registration of re-sales of previously issued securities, or to the extent the Conversion Shares do not constitute Registrable Securities. In that event, if the managing underwriter(s) of the public offering impose a limitation on the number of shares of Common Stock that may be included in the Registration Statement because, in such underwriter(s)’ judgment, such limitation would be necessary to effect an orderly public distribution, then Borrower Representative shall include in such registration (i) first, the securities Borrower Representative proposes to sell, and (ii) second, the Registrable Securities.
Appears in 1 contract
Samples: Loan and Security Agreement (Surface Oncology, Inc.)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business two Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to the Special Counsel, Lead Purchasers and Purchaser Counsel copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such HoldersPurchaser Counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of Purchasers holding a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business two Trading Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritof receipt.
(i) Prepare Subject to Section 6.1(d), prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective effective, as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin ten days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders Purchasers true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Purchasers thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Securities Purchase Agreement (Able Laboratories Inc)
Registration Procedures. In connection with Issuer shall keep each Holder whose Registrable Securities are included in any registration pursuant to this Section 1 reasonably advised as to the Company’s registration obligations hereunder, the Company initiation and completion of such registration. Issuer shall:
: (a) Prepare prepare and file with the Commission on or prior a registration statement with respect to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto)Registrable Securities, and use all reasonable efforts to cause the Registration Statement to become effective and remain effective as provided hereinfor a period of 180 days or until the Holder or Holders have completed the distribution described in the Registration Statement relating thereto, whichever first occurs; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Issuer has exercised its rights pursuant to Section 1.1(b) or Section 1.2(c) to suspend the use of a Registration Statement, this period shall be extended one day for each day that the use of a Registration Statement for reasons is suspended; (b) furnish such number of prospectuses (including preliminary prospectuses) and other than the failure of the documents as a Holder from time to comply with Section 3(mtime may reasonably request; (c) hereof, shall prepare and file with the Commission amendments and supplements to such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and the prospectus used in connection with such Registration Statement as promptly as possible provide the Holders true and complete copies of all correspondence from and may be reasonably necessary to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the such Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
Statement; (cd) Notify the Holders notify each holder of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the registered under such Registration Statement is proposed to be filed (but in no event in of the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” effectiveness of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional informationthereto; (iie) enter into such customary agreements and take all such other action in connection therewith as the Holders of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any or all more than 50% of the Registrable Securities being registered reasonably request in order to expedite or facilitate the initiation disposition of any Proceedings for that purposesuch Registrable Securities; (iiif) furnish to each prospective seller a signed counterpart, addressed to the prospective sellers, of an opinion of counsel for Issuer, dated the effective date of the receipt registration statement, and a “comfort” letter signed 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 (iv) if the independent public accountants who have certified Issuer’s financial statements included in the Registration Statement become ineligible for inclusion therein or of registration statement, covering substantially the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material same matters with respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, registration statement (and the prospectus included therein) and (in the case of the Registration Statement or “comfort” letter) with respect to events subsequent to the Prospectusdate of the financial statements, as are covered in connection with the case may be, it will not contain any untrue statement opinion 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. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to Issuer’s counsel and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment “comfort” letter delivered to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders underwriters in connection with the offering of securities; and sale (g) notify each Holder of the Registrable Securities covered by such Prospectus and Registration Statement at any amendment or supplement thereto.
(h) Prior time when, to any public offering the knowledge of Registrable SecuritiesIssuer, use its best efforts a prospectus relating thereto is required to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale be delivered under the securities or Blue Sky laws Securities Act, of such jurisdictions within the United States happening of any event as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during a result of which the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition prospectus included in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be freeas then in effect, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain includes an untrue statement of a material fact or omit omits to state a material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleadingthen existing.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Convertible Notes Purchase Agreement (Wits Basin Precious Minerals Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business four Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, each Holder copies of all the “Selling Stockholders” section of such documents document, the “Plan of Distribution” and any risk factor contained in such document that addresses specifically this transaction or the Selling Stockholders, as proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond Holder. Such documents may be delivered to such inquiries as shall be necessaryHolder via electronic mail (i.e., in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Acte-mail). The Company shall not file the a Registration Statement or Statement, any such Prospectus or any amendments or supplements thereto to in which the Holders of “Selling Stockholder” section thereof substantively differs from the disclosure received from a majority of the Registrable Securities Holder in its Selling Holder Questionnaire (as amended or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritsupplemented).
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the each Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that would not result in the Registration Statementdisclosure to the Holders of material and non-public information concerning the Company; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the Registration Statement(s) and the disposition of all Registrable Securities covered by the each Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplementedStatement.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than two Trading Days prior to such filing and, in the case of (v) below, not less than three Trading Days prior to the financial statements in any Registration Statement becoming ineligible for inclusion therein) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders that pertain to the Holders as a Selling Stockholder or to the Plan of Distribution, but not information which the Company believes would constitute material and non-public information); and (C) with respect to the each Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the such Registration Statement, Prospectus or other documents so that, in the case of the such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its reasonable best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder Holder, with charge and at the Special Counsel, without chargeoption of the Company in electronic format, at least one conformed copy of each Registration Statement and each amendment thereto, thereto but not including financial statements and schedules, and all the exhibits thereto to the extent requested by such Person (including those previously furnished or incorporated by referencefurnished) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without with charge, as many up to twenty (20) copies of the each Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such all jurisdictions within the United States as any Holder requests in writingmay request, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration StatementStatements; provided, however, that in connection with any such registration or qualification, the Company shall not be required to (i) qualify generally to do business in any jurisdiction where it is the Company would not then so qualified or otherwise be required to take any action that would qualify, (ii) subject it itself to general taxation in any such jurisdiction, (iii) file a general consent to service of process in any jurisdiction where it is not then so subject jurisdiction, or subject (iv) make any change to the Company to any material tax in any such jurisdiction where it is not then so subjectCompany’s Certificate of Incorporation or bylaws.
(ih) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a purchaser of such Securities pursuant to a the Registration StatementStatement(s), which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statement Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the no Registration Statement nor such any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kj) Cause all Use reasonable efforts to take such other actions as are reasonably and customarily required by issuers in non-underwritten shelf registrations in order to facilitate the disposition of Registrable Securities relating to such included in any Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Marketin accordance with this Agreement.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or Not less than five (5) Business Days prior to the Filing Deadline, filing of a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement theretothereto (except for annual reports on Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K and any similar or successor reports), the Company shall (i) furnish to the Special Counsel, Holder copies of all such documents Registration Statement, Prospectus or amendment or supplement thereto, as proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, Holder. The Company shall permit a single firm of counsel designated by the Holders of a majority of the Registrable Securities covered by a Registration Statement to review such Registration Statement and all amendments and supplements thereto (iias well as all requests for acceleration or effectiveness thereof) at the and use commercially reasonable best efforts to reflect in such documents any comments as such counsel may reasonably propose and will not request acceleration of any Holder cause its officers and directors, counsel and independent certified public accountants to respond such Registration Statement without prior notice to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Actcounsel. The Company shall not file the a Registration Statement or any such related Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel covered by such Registration Statement shall reasonably and timely object to in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(b) Except in circumstances contemplated by Sections 3(c) and 4 below, and as provided therein: (i) Prepare prepare and file with the Commission such amendments, amendments (including post-effective amendments, ) and supplements to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the its Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Remainder Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and and, as so supplemented or amended amended, to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably practicable to any comments received from the Commission with respect to the each Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement but, except as agreed by a Holder, not any comments that would result in the Registration Statementdisclosure to the Holders of material and non-public information concerning the Company; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during until such time as all of such Registrable Securities shall have been disposed of (subject to the applicable period terms of this Agreement) in accordance with the intended methods of disposition by the Holders thereof as set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that each Holder shall be responsible for the Company delivery of the Prospectus to the Persons to whom such Holder sells any of the Shares (including in accordance with Rule 172 under the Securities Act), and each Holder agrees that sales of Registrable Securities pursuant to a Registration Statement shall not be in compliance with the plan of distribution described in the applicable Registration Statement and otherwise in compliance with applicable federal and state securities laws. In the case of amendments and supplements to a Registration Statement which are required to take any action be filed pursuant to this Agreement (including pursuant to this Section 3(e3(b)) that would, in the written opinion by reason of counsel for the Company (addressed to the Special Counsel)filing a report on Form 10-K, violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished Form 10-Q or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus Form 8-K or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration or qualification) of such Registrable Securities for offer and sale analogous report under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewithExchange Act, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required have incorporated such report by the transfer agent, which authorize and direct the transfer agent to issue reference into such Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon , if applicable, or shall file such amendments or supplements with the occurrence of any event contemplated by Section 3(c)(C)(iii) Commission on the same day on which the Exchange Act report which created the requirement for the Company to amend or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchangewas filed. [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, the American Stock Exchange or the Nasdaq Stock MarketMARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Securities Purchase Agreement (Sunesis Pharmaceuticals Inc)
Registration Procedures. In Subject to Section 2(a)(i) hereof, in connection with the Companyobligations of the Company pursuant to Section 2(a)(ii) with respect to the registration of the Registrable Shares under the Securities Act to permit the public sale of such Registrable Shares in the United States by the Holder or Holders in accordance with the Holder’s registration obligations hereunderor Holders’ intended method or methods of distribution, the Company shall:
(a) Prepare (i) notify the Selling Holders’ Counsel, in writing, at least ten Business Days prior to filing a Registration Statement, of its intention to file a Registration Statement with the SEC and, at least five Business Days prior to filing, provide a copy of the Registration Statement to the Selling Holders’ Counsel for review and comment; (ii) prepare and file with the Commission on or prior to the Filing DeadlineSEC, as specified in this Agreement, a Registration Statement on Form S-3 Statement(s), which Registration Statement(s) shall (or if such x) comply as to form is not available in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith and (y) be reasonably acceptable to the Company on another form appropriate Selling Holders’ Counsel; (iii) notify the Selling Holders’ Counsel in writing, at least five Business Days prior to filing of any amendment or supplement to such Registration Statement, and, at least three Business Days prior to filing, provide a copy of such amendment or supplement to the Selling Holders’ Counsel for review and comment; (iv) promptly following receipt from the SEC, provide the Selling Holders’ Counsel copies of any comments made by the staff of the SEC relating to such registration in accordance herewithRegistration Statement and of the Company’s responses thereto for review and comment; and (v) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and use its commercially reasonable efforts to cause the such Registration Statement to become effective as soon as practicable after filing and to remain effective effective, subject to Section 7 hereof, until the earlier of (A) such time as provided hereinall Registrable Shares covered thereby have been sold in accordance with the intended distribution of such Registrable Shares, (B) the date on which all Registrable Shares covered thereby are disposed of pursuant to Rule 144 or any similar provision then in effect under the Securities Act, (C) the date on which all Registrable Shares covered thereby have been sold to the Company, or (D) the date on which all Registrable Shares covered thereby cease to be outstanding; provided, however, that the Company shall not less be required to cause the IPO Registration Statement to remain effective for any period longer than three 90 days following the effective date of the IPO Registration Statement (3subject to extension as provided in Section 7(c) hereof); provided, further, that if the Company has an effective Mandatory Shelf Registration Statement on Form S-11 (or other form then available to the Company) under the Securities Act and becomes eligible to use Form S-3 or such other short-form registration statement form under the Securities Act, the Company may, upon 30 Business Days prior written notice to all Holders, register any Registrable Shares registered but not yet distributed under the filing of effective Mandatory Shelf Registration Statement on Form S-3 or such other short-form registration statement form under the Securities Act and, once such the short-form registration statement is declared effective, de-register such shares under the previous Mandatory Shelf Registration Statement or transfer the filing fees from the previous Mandatory Shelf Registration Statement (such transfer pursuant to Rule 429, if applicable) unless any related Prospectus or any amendment or supplement theretoHolder notifies the Company within 15 Business Days of receipt of the Company notice that such conversion would interfere with its distribution of Registrable Shares already in progress, in which case, the Company shall delay the effectiveness of the conversion to Form S-3 or such other short-form registration statement form under the Securities Act for a period of not less than 30 days from the date that the Company receives the notice from such Holder requesting a delay;
(b) subject to Section 5(h) hereof, (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the each such Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement effective for reasons other than the failure of the Holder to comply with period described in Section 3(m5(a) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related each Prospectus contained therein to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated rule that may be adopted under the Securities Act; and (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the applicable provisions of the Securities Act and the Exchange Act Laws with respect to the disposition of all Registrable Securities securities covered by the each Registration Statement during the applicable period in accordance with the intended method or methods of disposition distribution by the selling Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.thereof;
(c) Notify furnish to the Holders Holders, 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 order to facilitate the public sale or other disposition of the Registrable Shares; provided, however, that any such document’s availability on the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (or any successor thereto) shall satisfy such obligation; and subject to Section 7 hereof, the Company consents to the use of such Prospectus, including each preliminary Prospectus, by the Holders, if any, in connection with the offering and sale of the Registrable Shares covered by any such Prospectus;
(d) use its commercially reasonable efforts to register or qualify, or obtain exemption from registration or qualification for, all Registrable Shares by 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 any Holder of Registrable Securities 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 sold kept effective pursuant to Section 5(a) and do any and all other acts and things that may be reasonably necessary or advisable to enable such Holder to consummate the Special Counsel disposition in each such jurisdiction of such Registrable Shares owned by such Holder; provided, however, that the Company shall not be required to (i) qualify generally to 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 5(d) and except as may be required by the Securities Act, (ii) subject itself to taxation in any such jurisdiction, or (iii) submit to the general service of process in any such jurisdiction;
(i) notify each Holder promptly as possible and, if requested by any Holder, confirm such advice in writing (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) has become effective and when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendmentamendments and supplements thereto become effective, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiB) of the issuance by the Commission SEC or any state securities authority of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings Proceeding for that purpose; , (iiiC) of any request by the SEC or any other federal, state or foreign governmental authority for (x) amendments or supplements to a Registration Statement or related Prospectus or (y) additional information, and (D) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence happening of any event that makes any statement made in during the period a Registration Statement is effective as a result of which such Registration Statement or the related Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain therein contains any untrue statement of a material fact or omit omits to state any material fact required to be stated therein or necessary to make the statements therein, in therein not misleading (which information shall be accompanied by an instruction to suspend the light use of the circumstances under which they were Prospectus until the requisite changes have been made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should be included therein ); and (ii) make all required filings at the request of any such Holder, promptly to furnish to such Holder a reasonable number of copies of a supplement to or an amendment of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to may be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivereddelivered to the purchaser of such securities, neither the Registration Statement nor such Prospectus will contain 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, in the light of the circumstances under which they were made, not misleading.;
(kf) Cause all use its commercially reasonable efforts to avoid the issuance of, or if issued, to obtain the withdrawal of, any order enjoining or suspending the use or effectiveness of a Registration Statement or suspending the qualification of (or exemption from qualification of) any of the Registrable Securities relating Shares for sale in any jurisdiction, as promptly as practicable;
(g) upon request, furnish to each requesting Holder of Registrable Shares covered by a Registration Statement, without charge, one conformed copy of such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3post-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed thereto (without documents incorporated therein by reference or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities thatexhibits thereto, unless requested);
(h) except as provided in Section 7 hereof, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j)5(e)(i)(D) hereof, use its commercially reasonable efforts to promptly prepare a supplement or post-effective amendment to 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 Shares, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(i) if requested by the representative of the underwriters, if any, or until it is advised any Holders of Registrable Shares being sold in writing connection with such offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information as the representative of the underwriters, if any, or such Holders indicate relates to them or that they reasonably request be included therein, and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment;
(j) in the case of an Underwritten Offering meeting the Holder Underwritten Offering Threshold, use its commercially reasonable efforts to (A) furnish to each Holder of Registrable Shares covered by such Registration Statement and the underwriters a signed counterpart, addressed to each such Holder and the underwriters, of: (i) an opinion of counsel for the Company, dated the date of each closing under the underwriting agreement, reasonably satisfactory to such Holder and the underwriters; and (ii) a “comfort” letter, dated the effective date of such Registration Statement and the date of each closing under the underwriting agreement, signed by the independent public accountants who have certified the Company’s financial statements included in such Registration Statement, covering substantially the same matters with respect to such Registration Statement (and the Prospectus included therein) and with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants’ letters delivered to underwriters in underwritten public offerings of securities and such other financial matters as such Holder and the underwriters may reasonably request, and (B) if requested by the underwriters of such Underwritten Offering, cause the members of the Company’s management and board of directors of the Company (the “AdviceBoard of Directors”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in reasonably available for any road show or similar marketing activities related to such Prospectus or Registration Statement.Underwritten Offering;
(nk) If (i) there is material non-public information regarding if requested by one or more Holders proposing to sell at least $10 million of Registrable Shares in the Company which the Company’s Board of Directors aggregate (the “BoardHolder Underwritten Offering Threshold”) reasonably determines not to be ), cooperate in effecting an Underwritten Offering of such Holders’ Registrable Shares and enter into customary agreements (including in the Company’s best interest to disclose case of such Underwritten Offering, an underwriting agreement with the underwriter selected by such Holders in customary form and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available reasonably satisfactory to the Company which Company) and take all other reasonable action in connection therewith in order to expedite or facilitate the Board reasonably determines not distribution of the Registrable Shares included in such Registration Statement and, make representations and warranties to be the Holders covered by such Registration Statement and to the underwriters in such form and scope as are customarily made by issuers to underwriters in underwritten offerings and confirm the Company’s best interest same, to disclose the extent customary, if and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).when requested;
Appears in 1 contract
Samples: Registration Rights Agreement (NewLake Capital Partners, Inc.)
Registration Procedures. In (a) Obligations of the Company. Whenever registration of -------------------------- Registrable Securities has been requested pursuant to Section 3, Section 4 or Section 5 of this Agreement, the Company shall use best efforts to effect the registration and sale of such Registrable Securities in accordance with the intended method of distribution thereof as quickly as practicable, and in connection with the Company’s registration obligations hereunderany such request, the Company shall, as expeditiously as possible:
(ai) Prepare prepare and file with the Commission on or prior to the Filing Deadline, SEC a Registration Statement on Form S-3 (or if such any form is not available to for which the Company on another then qualifies or which counsel for the Company shall deem appropriate and which form appropriate shall be available for the sale of such registration Registrable Securities in accordance herewith) (which shall include a Plan with the intended method of Distribution substantially in the form of Exhibit A attached hereto)distribution thereof, and use all reasonable commercial efforts to cause the such Registration Statement to become effective and remain effective as provided hereineffective; provided, however, that not less than three (3x) Business Days prior to the before filing of the a -------- ------- Registration Statement or any related Prospectus prospectus or any amendment amendments or supplement supplements thereto, the Company shall (i) furnish to provide counsel selected by the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Designated Holders of holding a majority of the Registrable Securities being registered in such registration ("Holders' Counsel") and any other Inspector with an adequate and appropriate opportunity to review and comment on those portions of such Registration Statement and each prospectus included therein (and each amendment or supplement thereto) to be filed with the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel SEC that related to the Designated Holders and the distribution of the Registrable Securities, subject to such documents being under the Company's control, and (y) the Company determines in writing that shall notify the Holders' Counsel and 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 objection is without merit.stop order or to remove it if entered;
(iii) Prepare prepare and file with the Commission SEC such amendments, including post-effective amendments, amendments and supplements to the such Registration Statement and the prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement effective for reasons other than the failure lesser of the Holder to comply with Section 3(m(x) hereof, shall prepare 90 days and file with the Commission (y) such additional Registration Statements in order to register for resale under the Securities Act shorter period which will terminate when all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented Securities covered by any required Prospectus supplementsuch Registration Statement have been sold, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities securities covered by the such Registration Statement during the applicable such period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.Statement;
(ciii) Notify the Holders as soon as reasonably possible, furnish to each seller of Registrable Securities to be sold and the Special Counsel as promptly as possible (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case such number of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” copies of such Registration Statement Statement, each amendment and whenever the Commission comments supplement thereto (in writing on such Registration Statement; and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectivenesseach case including all exhibits thereto), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the prospectus included in such Registration Statement or Prospectus or for additional information; (iiincluding each preliminary prospectus) of as each such seller may reasonably request in order to facilitate the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement covering any or all disposition of the Registrable Securities owned by such seller;
(iv) register or the initiation qualify such Registrable Securities under such other securities or "blue sky" laws of such jurisdictions as any Proceedings seller of Registrable Securities may request, and to continue such qualification in effect in such jurisdiction for that purpose; (iii) of the receipt by the Company of any notification with respect as long as permissible pursuant to the suspension laws of such jurisdiction, or for as long as any such seller requests or until all of such Registrable Securities are sold or for 90 days, whichever is shortest, and do any and all other acts and things which may be reasonably necessary or advisable to enable any such seller to consummate the qualification or exemption from qualification of any disposition in such jurisdictions of the Registrable Securities for sale owned by such seller; provided, however, that the -------- ------- Company shall not be required to (x) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 7(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z) consent to general service of process in any such jurisdiction;
(v) 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 initiation or threatening of any Proceeding for such purpose; and (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence happening of any event that makes any statement made as a result of which, the prospectus included in the such Registration Statement contains an untrue statement of a material fact or Prospectus or omits to state any document incorporated or deemed material fact required to be incorporated stated therein by reference untrue or necessary to make the statements therein not misleading in any material respect light of the circumstances under which they were made, and the Company shall promptly prepare a supplement or that requires any revisions amendment to the Registration Statement, Prospectus such prospectus and furnish to each seller a reasonable number of copies of such supplement to or other documents an amendment of such prospectus as may be necessary so that, in after delivery to the case purchasers of the Registration Statement or the Prospectussuch Registrable Securities, as the case may be, it will such prospectus shall not contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which ;
(vi) enter into and perform customary agreements (including an underwriting agreement in customary form with the Holders may be entitled under this AgreementApproved Underwriter or Company Underwriter, if any, selected as provided in Section 3, Section 4 or Section 5, as the case may be) and take such other actions as are prudent and reasonably required in order to expedite or facilitate the disposition of such Registrable Securities;
(vii) 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 such seller or any managing underwriter (each, an "Inspector" and collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the events described 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 supply all information reasonably requested by any such Inspector in clauses connection with such Registration Statement. Records that the Company determines, in good faith, to be confidential and which it notifies the Inspectors are confidential shall not be disclosed by the Inspectors (i) through (iv) of Section 3(c)(C) occurs, and the Inspectors shall confirm their agreement in writing in advance to the Company if the Company shall use so request) unless (x) the disclosure of such Records is necessary, in the Company's judgment, 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 after exhaustion of all appeals therefrom or (z) the information in such Records was known to the Inspectors on a non-confidential basis prior to its best efforts disclosure by the Company or has been made generally available to respond the public. Each seller of Registrable Securities agrees that it shall, upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give notice to the Company and correct allow the event.Company, at the Company's expense, to undertake appropriate action to prevent disclosure of the Records deemed confidential;
(dviii) Use its best efforts if such sale is pursuant to avoid the issuance of, or, if issuedan underwritten offering, use best efforts to obtain a "cold comfort" letter from the withdrawal ofCompany's independent public accountants in customary form and covering such matters of the type customarily covered by "cold comfort" letters as Holders' Counsel or the managing underwriter reasonably request;
(ix) use best efforts to furnish, (i) at the request of any order suspending seller of Registrable Securities on the effectiveness of 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 or (ii) any suspension with respect to such securities becomes effective, an opinion, dated such date, of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as counsel representing the Company reasonably agrees should be included therein and (ii) make all required filings for the purposes of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; providedregistration, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel)underwriters, violate applicable law.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;
(fx) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the otherwise use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects comply with all applicable rules and regulations of the Commission SEC, and make generally available to its security holders 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 and Rule 158 not later than 45 days after thereunder;
(xii) keep Holders' Counsel advised in writing as to the end initiation and progress of any registration under Section 3-month period (, Section 4 or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.Section 5 hereunder;
(mxiii) Request cooperate with each selling Holder to furnish to the Company information regarding such Holder and the distribution seller of such Registrable Securities as is required by law or the Commission to be disclosed and each underwriter participating in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under and their respective counsel in connection with any filings required to be made with the Registration Statement until such Holder’s receipt National Association of Securities Dealers, Inc. (the "NASD"); and
(xiv) take all other steps reasonably necessary to effect the registration of the copies of the supplemented Prospectus and/or amended Registration Statement Registrable Securities contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementhereby.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three two (32) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such person and not already filed by the Company with the Commission) which documents (other than those incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective legal counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereofgood faith; provided, unless counsel however, that any period of time which the Registration Statement is delayed due to a wilful breach of this Agreement by the Company will be added to the Company determines in writing that such objection is without meritEffectiveness Date.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statementthereto; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (and, in the case of (i)(A) below, not less than two (2) Business Days prior to such filing) and (if requested by any such person) confirm such notice in writing promptly following the day (i) (A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such the Registration Statement and whenever the Commission comments in writing on the Registration Statement (the Company shall upon request provide true and complete copies thereof and all written responses thereto as promptly as reasonably possible to each of the Holders who so requests provided such Registration Statementrequesting Holders agree to keep such information confidential until it is publicly disclosed); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation misleading (provided that such Holder of Registrable Securities agrees to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the eventkeep such information confidential until it is publicly disclosed).
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If To the extent requested by any Holder of Registrable Securitiessuch Holders, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) schedules promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons persons may reasonably request; and request in connection with resales by the Holder of Registrable Securities. The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(c).
(hg) Prior to any public offering of Registrable Securities, use Use its commercially reasonable best efforts to register or qualify or cooperate with the selling Holders and the Special Counsel in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such of the registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate If requested by the Holders, cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be delivered to a transferee that were validly sold pursuant to a an effective Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the . The Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution person thereof that has voting and dispositive control over the Shares, for purposes of such Registrable Securities as is required by law or disclosure in the Commission to be disclosed "Selling Stockholder" table in the Registration Statement. To the extent that either of the Investors propose to sell, and transfer or otherwise dispose of the Shares in an underwritten offering, the Company may exclude from such registration the Registrable Securities and each of any such Holder who fails (i) to furnish such information or (ii) to SALT and SSH, as applicable, agree to furnishnegotiate and agree the terms of such underwritten offering at such time in good faith, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to including the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities selection of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(iunderwriter(s), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may which shall be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available agreeable to the Company which and the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)participating Investors.
Appears in 1 contract
Samples: Registration Rights Agreement (Scorpio Tankers Inc.)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 2 hereof, during the Effectiveness Period, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, SEC a Registration Statement or Registration Statements on Form S-3 (or if such any appropriate form is not under the Securities Act available to for the Company on another form appropriate for such registration sale of the Registrable Securities by the Holders thereof in accordance herewith) (which shall include a Plan with the intended method or methods of Distribution substantially in the form of Exhibit A attached hereto)distribution thereof, and use its reasonable best efforts to cause the each such Registration Statement to become effective and remain effective as provided herein; providedprovided that before filing any Registration Statement or Prospectus or any amendments or supplements thereto with the SEC, howeverfurnish to the Initial Purchaser and the Special Counsel of such offering, that not less than if any, copies of all such documents proposed to be filed at least three (3) Business Days prior to the filing of the such Registration Statement or any related amendment thereto or Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(ib) Prepare Subject to Section 3(h), prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to for the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included period specified in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities2(a); (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 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use its reasonable best efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the such Registration Statement during the applicable period Effectiveness Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to the Holders of Registrable Securities to be sold Notice Holders, the Initial Purchaser and the Special Counsel as promptly as possible Counsel, (Ai) when a Prospectus or any Prospectus supplement Prospectus, prospectus supplement, Registration Statement or post-effective amendment to the a Registration Statement is proposed to be has been filed (but in no event in with the case of this subparagraph (A)SEC and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the Commission SEC or any other Federal federal or state governmental authority for amendments or supplements to the any Registration Statement or related Prospectus or for additional information; , (iiiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings proceedings for that purpose; , (iiiiv) 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 , (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of, but not the nature of any event or details concerning, a Material Event and (vi) of the determination by the Company that makes any statement made in the a post-effective amendment to a Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or Prospectus or any document incorporated or deemed as required pursuant to be incorporated therein by reference untrue in any material respect or Section 3(h)), state that requires any revisions to the Registration Statement, Prospectus or other documents so thatit constitutes a Deferral Notice, in which event the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) provisions of Section 3(c)(C3(h) occurs, the Company shall use its best efforts to respond to and correct the eventapply.
(d) Use its best efforts to avoid the issuance of, or, if issued, use reasonable best efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of the a Registration Statement or (ii) the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdictionjurisdiction in which they have been qualified for sale, in either case at the earliest practicable possible moment, and provide immediate notice to each Notice Holder and the Initial Purchaser of the withdrawal of any such order.
(e) If requested by any Holder of Registrable Securities, (i) As promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 furnish to be incorporated in such Prospectus supplement or post-effective amendment; providedeach Notice Holder, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder Counsel and the Special CounselInitial Purchaser, upon request and without charge, at least one (1) conformed copy of each the Registration Statement and each any amendment thereto, including financial statements and schedules, exhibits and all exhibits documents incorporated or deemed to the extent requested by such Person (including those previously furnished or be incorporated therein by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly During the Effectiveness Period, deliver to each Holder and Notice Holder, the Special Counsel, if any, and the Initial Purchaser, in connection with any sale of Registrable Securities pursuant to a Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each form of preliminary prospectus) and each any amendment or supplement thereto as such Persons Notice Holder may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus and or each amendment or supplement thereto by each of the selling Holders Notice Holder in connection with the any offering and sale of the Registrable Securities covered by such Prospectus and or any amendment or supplement theretothereto in the manner set forth therein.
(hg) Prior to any public offering of the Registrable SecuritiesSecurities pursuant to a Registration Statement, use its reasonable best efforts to register or qualify or cooperate with the selling Notice Holders and the Special 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 laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writingwriting (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice 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 a in the manner set forth in the relevant Registration StatementStatement and the related Prospectus; provided, however, provided that the Company shall will not be required to (i) qualify generally to do business as a foreign corporation or as a dealer in securities 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 that would subject it to general service of process in any jurisdiction where it is not then so subject suits or subject the Company to any material tax taxation in any such jurisdiction where it is not then so subject.
(ih) Cooperate with Upon (A) the Holders to facilitate issuance by the timely preparation and delivery SEC of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf Registration Statement under Section or of the Securities Act, (but no later than two days thereafterB) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iiior the existence of any fact (a "MATERIAL EVENT") or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the result of which any Registration Statement or a supplement to the related Prospectus or shall contain any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will 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, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading., or (C) the occurrence or existence of any pending corporate development that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus:
(ki) Cause all Registrable Securities relating in the case of clause (B) above, subject to the next sentence, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be listed on stated therein or necessary to make the New York Stock Exchangestatements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Registration Statement, subject to the next sentence, use its reasonable best efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special Counsel, if any, that the availability of the Shelf Registration Statement is suspended (a "DEFERRAL NOTICE") and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (z) in the case of clause (C) above, as soon as in the reasonable discretion of the Company, such suspension is no longer appropriate. The Company shall be entitled to exercise its right under this Section 3(h) to suspend the availability of the Shelf Registration Statement or any Prospectus, without incurring or accruing any obligation to pay liquidated damages pursuant to Section 2(e), no more than one (1) time in any three month period or three (3) times in any twelve month period, and any such period during which the availability of the Registration Statement and any Prospectus is suspended (the "DEFERRAL PERIOD") shall, without incurring any obligation to pay liquidated damages pursuant to Section 2(e), not exceed 30 days; provided that the aggregate duration of any Deferral Periods shall not exceed 30 days in any three month period (or 60 days in any three month period in the event of a Material Event pursuant to which the Company has delivered a second notice as permitted below) or 90 days in any twelve (12) month period; provided that in the case of a Material Event relating to an acquisition or a probable acquisition or financing, recapitalization, business combination or other similar transaction, the American Stock Exchange Company may, without incurring any obligation to pay liquidated damages pursuant to Section , deliver to Notice Holders a second notice to the effect set forth above, which shall have the effect of extending the Deferral Period by up to an additional 30 days, or the Nasdaq Stock Marketsuch shorter period of time as is specified in such second notice.
(li) If requested in writing in connection with a disposition of Registrable Securities pursuant to a Registration Statement, make reasonably available for inspection during normal business hours by a representative for the Notice Holders of such Registrable Securities, any broker-dealers, attorneys and accountants retained by such Notice Holders, and any attorneys or other agents retained by a broker-dealer engaged by such Notice Holders, 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 reasonably available for inspection during normal business hours on reasonable notice all relevant information reasonably requested by such representative for the Notice Holders, or any such broker-dealers, attorneys or accountants in connection with such disposition, in each case as is customary for similar "due diligence" examinations; provided that such persons shall first agree in writing with the Company that any non-public 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 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 Registration Statement or the use of any prospectus referred to in this Agreement), (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, and provided further that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders and the other parties entitled thereto by Special Counsel. Any person legally compelled to disclose any such confidential information made available for inspection shall provide the Company with prompt prior written notice of such requirement so that the Company may seek a protective order or other appropriate remedy.
(j) Comply in all material respects with all applicable rules and regulations of the Commission SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period thereunder (or 90 days after any similar rule promulgated under the end of any Securities Act) for a 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of the a Registration Statement, which statement statements shall conform be made available no later than 45 days after the end of the 12-month period or 90 days if the 12-month period coincides with the fiscal year of the Company.
(k) Cooperate with each Notice Holder to facilitate the requirements timely preparation and delivery of Rule 158certificates representing Registrable Securities sold or to be sold pursuant to a Registration Statement, which certificates shall not bear any restrictive legends, and cause such Registrable Securities to be in such denominations as are permitted by the Indenture and registered in such names as such Notice Holder may request in writing at least one (1) Business Day prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities covered by each Registration Statement not later than the effective date of such Registration Statement and provide the Trustee and the transfer agent for the Common Stock with printed certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.
(m) Request each selling Holder to furnish to the Company information regarding such Holder Cooperate and the distribution of such Registrable Securities as is assist in any filings required by law or the Commission to be disclosed in made with the Registration StatementNational Association of Securities Dealers, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.Inc.
(n) If Upon (i) there is material non-public information regarding the Company which filing of the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose Initial Shelf Registration Statement and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition effectiveness of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Initial Shelf Registration Statement, then announce the Company may postpone or suspend filing or effectiveness of a registration statement for a period not same, in each case by release to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)Reuters Economic Services and Bloomberg Business News.
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to the Special Counsel, Purchasers and Purchaser Counsel copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Special CounselPurchasers and Purchaser Counsel (it being understood that such review must be completed within three Trading Days of receipt of the applicable documents), and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holdersrespective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of Purchasers holding a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin ten days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders Purchasers true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders Purchasers thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders Purchasers of Registrable Securities to be sold and the Special Purchaser Counsel as promptly as possible reasonably possible, and (Aif requested by any such Person) when a Prospectus or confirm such notice in writing no later than one Trading Day thereafter, of any Prospectus supplement or post-effective amendment to of the Registration Statement is proposed to be filed following events: (but in no event in the case of this subparagraph (A), less than three (3i) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such any Registration Statement and whenever Statement; (ii) the Commission comments in writing on any Registration Statement (in which case the Company shall deliver to each Purchaser a copy of such Registration Statementcomments and of all written responses thereto); and (Ciii) with respect to the any Registration Statement or any post-effective amendment, when the same has become effective amendment is declared effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiv) of any request by the Commission or any other Federal or state governmental authority for amendments requests any amendment or supplements supplement to the any Registration Statement or Prospectus or for requests additional informationinformation related thereto; (iiv) of the issuance by the Commission of issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiivi) of the receipt by the Company receives notice 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 threat of any Proceeding for such purpose; and or (ivvii) if the financial statements included or incorporated by reference in the any Registration Statement become ineligible for inclusion or incorporation therein or of the occurrence of any event that makes any statement made in the any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or that requires any revisions revision to the a Registration Statement, Prospectus or other documents document is required so that, in the case of the Registration Statement or the Prospectus, as the case may be, that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunderResale Registration Statement, the Company Buyer shall:
(a) Prepare use commercially reasonable efforts to cause the Resale Registration Statement to remain effective for the Effectiveness Period, and shall use commercially reasonable efforts to as promptly as is practicable obtain the withdrawal of any order suspending the registration or qualification (or the effectiveness thereof) or suspending or preventing the use of any related prospectus in any jurisdiction with respect thereto;
(b) prepare and file with the Commission on or prior SEC such amendments and post-effective amendments to the Filing DeadlineResale Registration Statement, a and such supplements, as may be required by the rules, regulations or instructions applicable to the registration form used by the Buyer or by the Securities Act or rules and regulations thereunder to keep the Resale Registration Statement on Form S-3 effective for the Effectiveness Period;
(or if such form is not available to the Company on another form appropriate for such registration in accordance herewithc) notify Parent as promptly as reasonably practicable of each of (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3A) Business Days prior to the filing of the Resale Registration Statement (unless filed prior to the date hereof) or Resale Prospectus Supplement and any amendment or supplements thereto, (B) the receipt of any comments from the SEC or any state securities law authorities or any other governmental authorities with respect to any such Resale Registration Statement or any related Resale Prospectus or any amendment or supplement thereto, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus Supplement or any amendments or supplements thereto and (C) any oral or written stop order with respect to which such Resale Registration Statement, any suspension of the Holders registration or qualification of the sale of such Registrable Securities in any jurisdiction, or any initiation or threatening of any proceedings with respect to any of the foregoing, in each case as soon as Buyer becomes aware of such event; provided that Buyer shall not be required to notify Parent of any events described in (A) to (C) of this paragraph related to the Resale Registration Statement that do not affect the ability of Parent to sell Registrable Securities pursuant to the Resale Registration Statement and Resale Prospectus Supplement;
(d) if requested, furnish to Parent, the underwriters, and the sales or placement agent, if any, and counsel for each of the foregoing, a majority conformed copy of such Resale Registration Statement and each amendment and supplement thereto (in each case, including all exhibits thereto and documents incorporated by reference therein) and such additional number of copies of such Resale Registration Statement, each amendment, and supplement thereto (in such case without such exhibits and documents), the prospectus (including each preliminary prospectus) included in such Resale Registration Statement, and the Resale Prospectus Supplement and all exhibits thereto and documents incorporated by reference therein, and such other documents as such seller, underwriter, agent, or counsel may reasonably request in order to facilitate the disposition of the Registrable Securities; provided, that Buyer shall have no obligation to provide any document pursuant to this section that is available on the SEC’s XXXXX system;
(e) use commercially reasonable efforts to register or qualify (or exempt from registration or qualification) such Registrable Securities under such securities or the Special Counsel “blue sky” laws of such jurisdictions as Parent reasonably requests (provided that Buyer shall reasonably object not be required to (x) qualify to do business in writing within three any jurisdiction in which it would not otherwise be required to qualify but for this paragraph, (3y) Business Days after their receipt thereofsubject itself to taxation in any such jurisdiction in which it would not otherwise be subject to taxation but for this paragraph, unless counsel or (z) take any action that would subject it to the Company determines general service of process in writing that such objection is without merit.any jurisdiction in which it would not otherwise be subject to general service of process but for this paragraph);
(if) Prepare and file with the Commission such amendmentsnotify Parent, including post-effective amendments, to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent at any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus time when a prospectus relating thereto is required to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated delivered under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to rules and regulations thereunder, upon Buyer’s discovery that, or of the disposition happening of all Registrable Securities covered by any event as a result of which, the Resale Registration Statement during the applicable period covering such Registrable Securities, as then in accordance with the intended methods effect, contains an untrue statement of disposition by the Holders thereof set forth in the Registration Statement as so amended a material fact or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities omits to state any material fact required to be sold stated therein or any fact necessary to make the statements therein not misleading in light of the circumstances under which they were made, and the Special Counsel subject to Section 13 of this Annex A, as promptly as possible (A) when reasonably practicable prepare and furnish to Parent a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed Resale Prospectus Supplement to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Resale Registration Statement and whenever file such supplement or amendment with the Commission comments in writing on SEC so that such Registration Statement; and (C) with respect to the Resale Registration Statement or any post-effective amendmentshall not, when the same has become effective (which notice shall be and such Resale Prospectus Supplement as thereafter delivered to the Purchasers and Special Counsel on the same day as purchasers of such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 jurisdictionshall not, or the initiation or threatening of any Proceeding for such purpose; and (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any an untrue statement of a material fact or omit to state any material fact required to be stated therein or any fact necessary to make the statements therein, therein not misleading in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.;
(g) Promptly deliver use commercially reasonable efforts to each Holder and cause all Registrable Securities so registered to be listed on Nasdaq or such other national securities exchange or established over-the-counter market as is then the Special Counsel, without charge, as many copies principal market on which or through which similar securities of Buyer are then listed or traded;
(h) use commercially reasonable efforts to comply in all material respects with the provisions of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents Securities Act with respect to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale disposition of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Resale Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.and
(i) Cooperate with the Holders otherwise, use commercially reasonable efforts to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legendscooperate reasonably with, and to enable take such Registrable Securities to customary actions as may reasonably be requested by Parent, in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares sales of Registrable Securities under pursuant to the Resale Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Share Purchase Agreement (Take Two Interactive Software Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, SEC a Shelf Registration Statement or Shelf Registration Statements on Form S-3 (or if such any appropriate form is not under the Securities Act available to for the Company on another form appropriate for such registration sale of the Registrable Securities by the Holders thereof in accordance herewith) (which shall include a Plan with the intended method or methods of Distribution substantially in the form of Exhibit A attached hereto)distribution thereof, and use its reasonable best efforts to cause the each such Shelf Registration Statement to become effective and remain effective as provided herein; provided, however, provided that not less than three (3) Business Days prior to the before filing of the any Shelf Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto with the SEC, the Company shall (i) furnish to the Initial Purchasers and the Special Counsel, if any, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject filed and use its commercially reasonable best efforts to reflect in each such document when so filed with the review of SEC such comments as the Initial Purchasers or the Special Counsel, and if any, reasonably shall propose within five (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (35) Business Days after their receipt thereof, unless counsel of the delivery of such copies to the Company determines in writing that such objection is without meritInitial Purchasers and the Special Counsel.
(ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the each Shelf Registration Statement as may be necessary to keep the such Shelf Registration Statement continuously effective as to the applicable Registrable Securities for during the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable SecuritiesPeriod; (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 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use its commercially reasonable best efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the such Shelf Registration Statement during the applicable period Effectiveness Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Shelf Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to the Holders of Registrable Securities to be sold Notice Holders, the Initial Purchasers and the Special Counsel as promptly as possible Counsel, if any, (Ai) when a Prospectus or any Prospectus supplement Prospectus, prospectus supplement, Shelf Registration Statement or post-effective amendment to the a Shelf Registration Statement is proposed to be has been filed (but in no event in with the case of this subparagraph (A)SEC and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the a Shelf Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request request, following the effectiveness of the initial Shelf Registration Statement under the Securities Act, by the Commission SEC or any other Federal federal or state governmental authority for amendments or supplements to the any Shelf Registration Statement or related Prospectus or for additional information; , (iiiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Shelf Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings proceedings for that purpose; , (iiiiv) 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 , (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event a Material Event and (vi) of the determination by the Company that makes any statement made in the a post-effective amendment to a Shelf Registration Statement will be filed with the SEC, which notice may, at the discretion of the Company (or Prospectus or any document incorporated or deemed as required pursuant to be incorporated therein by reference untrue in any material respect or Section 3(i)), state that requires any revisions to the Registration Statement, Prospectus or other documents so thatit constitutes a Deferral Notice, in which event the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) provisions of Section 3(c)(C3(i) occurs, the Company shall use its best efforts to respond to and correct the eventapply.
(d) Use its best efforts to avoid the issuance of, or, if issued, use reasonable best efforts to obtain the withdrawal of, (i) of any order suspending the effectiveness of the a Shelf Registration Statement or (ii) the lifting of any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdictionjurisdiction in which they have been qualified for sale, in either case at the earliest practicable possible moment, and provide prompt notice to each Notice Holder and the Initial Purchasers of the withdrawal of any such order.
(e) If reasonably requested by any Holder of Registrable SecuritiesInitial Purchaser or Notice Holder, (i) as promptly as practicable incorporate in a Prospectus prospectus supplement or post-effective amendment to the a Shelf Registration Statement such information as the Company reasonably agrees should Initial Purchasers and the Special Counsel, if any, or such Notice Holder shall on the basis of an opinion of nationally-recognized counsel experienced in such matters, determine to be required to be included therein by applicable law and (ii) make all any required filings of such Prospectus supplement or such post-effective amendment as soon as practicable after the Company has received notification of the matters to be incorporated in such Prospectus prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish As promptly as practicable furnish to each Holder Notice Holder, the Special Counsel and the Special CounselInitial Purchasers, upon request and without charge, at least one (1) conformed copy of each the Shelf Registration Statement and each any amendment thereto, including financial statements and schedules, exhibits and all exhibits documents incorporated or deemed to the extent requested by such Person (including those previously furnished or be incorporated therein by reference) promptly after the filing of such documents with the Commission.
(g) Promptly During the Effectiveness Period, deliver to each Holder and Notice Holder, the Special Counsel, if any, and the Initial Purchasers, in connection with any sale of Registrable Securities pursuant to a Shelf Registration Statement, without charge, as many copies of the Prospectus or Prospectuses relating to such Registrable Securities (including each form of preliminary prospectus) and each any amendment or supplement thereto as such Persons Notice Holder may reasonably request; to provide a “reasonable number” of copies thereof to the New York Stock Exchange as contemplated by Rule 153 under the Securities Act; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus and or each amendment or supplement thereto by each of the selling Holders Notice Holder in connection with the any offering and sale of the Registrable Securities covered by such Prospectus and or any amendment or supplement theretothereto in the manner set forth therein.
(h) Prior to any public offering of the Registrable SecuritiesSecurities pursuant to a Shelf Registration Statement, use its commercially reasonable best efforts to register or qualify or cooperate with the selling Notice Holders and the Special 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 laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writingwriting (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use its commercially reasonable best efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice 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 a in the manner set forth in the relevant Shelf Registration StatementStatement and the related Prospectus; provided, however, provided that the Company shall will not be required to (i) qualify generally to do business as a foreign corporation or as a dealer in securities 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 that would subject it to general service of process in any jurisdiction where it is not then so subject suits or subject the Company to any material tax taxation in any such jurisdiction where it is not then so subject.
(i) Cooperate with Upon (A) the Holders to facilitate issuance by the timely preparation and delivery SEC of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after stop order suspending the effectiveness of the a Shelf Registration Statement or the initiation of proceedings with respect to a Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (but no later than two days thereafterB) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iiior the existence of any fact (a “MATERIAL EVENT”) or (iv), as promptly as possible, prepare a supplement or amendment, including result of which a post-effective amendment, to the Shelf Registration Statement or a supplement to the related Prospectus or shall contain any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will 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, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the occurrence or existence of any pending corporate development that, in the reasonable discretion of the Company, makes it appropriate to suspend the availability of a Shelf Registration Statement and the related Prospectus for a discrete period of time:
(i) in the case of clause (B) above, as promptly as practicable prepare and file a post-effective amendment to such Shelf Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Shelf Registration Statement and Prospectus so that such Shelf Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, and, in the case of a post-effective amendment to a Shelf Registration Statement, use its commercially reasonable best efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special Counsel, if any, that the availability of the Shelf Registration Statement is suspended (a “DEFERRAL NOTICE”) and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder’s receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its commercially reasonable best efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the Company, public disclosure of such Material Event would not be prejudicial to or contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable thereafter and (z) in the case of clause (C) above, as soon as in the reasonable discretion of the Company, such suspension is no longer appropriate. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Shelf Registration Statement or any Prospectus, without incurring or accruing any obligation to pay liquidated damages pursuant to Section 2(e), no more than one (1) time in any three month period or three (3) times in any twelve month period, and any such period during which the availability of the Registration Statement and any Prospectus is suspended (the “DEFERRAL PERIOD”) shall, without incurring any obligation to pay liquidated damages pursuant to Section 2(e), not exceed 30 days; provided that the aggregate duration of any Deferral Periods shall not exceed 30 days in any three month period or 90 days in any twelve (12) month period.
(j) If requested in writing in connection with a disposition of Registrable Securities pursuant to a Shelf Registration Statement and upon three (3) Business Days’ prior notice, make reasonably available for inspection during normal business hours by a representative for the Notice Holders of such Registrable Securities, any broker-dealers, attorneys and accountants retained by such Notice Holders, and any attorneys or other agents retained by a broker-dealer engaged by such Notice Holders, 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 reasonably available for inspection during normal business hours on reasonable notice all relevant information reasonably requested by such representative for the Notice Holders, or any such broker-dealers, attorneys or accountants in connection with such disposition, in each case as is customary for similar “due diligence” examinations; provided that such persons shall first agree in writing with the Company that any information that is reasonably and in good faith designated by the Company in writing as confidential at the time of delivery of such information shall be kept confidential by such persons 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 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), (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, and provided further that the foregoing inspection and information gathering shall, to the greatest extent possible, be coordinated on behalf of all the Notice Holders and the other parties entitled thereto by Special Counsel.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period thereunder (or 90 days after any similar rule promulgated under the end of any Securities Act) for a 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of the a Shelf Registration Statement, which statement statements shall conform be made available no later than 45 days after the end of the 12-month period or 90 days if the 12-month period coincides with a fiscal year of the Company.
(l) Cooperate with each Notice Holder to facilitate the requirements timely preparation and delivery of Rule 158certificates representing Registrable Securities (except as otherwise provided in the Certificate of Designations) sold or to be sold pursuant to a Shelf Registration Statement, which certificates shall not bear any legends restricting transfer under federal securities laws, and cause such Registrable Securities to be in such denominations as are permitted by the Certificate of Designations and registered in such names as such Notice Holder may request in writing at least three (3) Business Days prior to any sale of such Registrable Securities.
(m) Request Provide a CUSIP number for all Registrable Securities covered by each selling Holder to furnish to Shelf Registration Statement not later than the Company information regarding effective date of such Holder Shelf Registration Statement and provide the Transfer Agent and the distribution of such Registrable Securities as is required by law or transfer agent for the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration Common Shares with printed certificates for the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementa form eligible for deposit with The Depository Trust Company.
(n) If Cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc. or the New York Stock Exchange, Inc.
(o) Upon (i) there is material non-public information regarding the Company which filing of the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose initial Shelf Registration Statement and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition effectiveness of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the initial Shelf Registration Statement, then announce the Company may postpone same, in each case by release to Reuters Economic Services and Bloomberg Business News or suspend filing or effectiveness other reasonable means of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)distribution.
Appears in 1 contract
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Holders and the Special Counsel, Counsel copies of all such documents proposed to be filed, filed which documents (other than those incorporated by reference) will be subject to the review of such Holders and the Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or and the Special Counsel shall reasonably object in writing within three (3) Business Trading Days after their of the later of receipt thereof or receipt of revised versions thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin ten days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such the Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation .
(d) Notwithstanding any other provision of this Agreement (but subject to any remedies the liquidated damages clause of Section 2(b)) in the event that, in the judgment of the Company, it is advisable to suspend use of a Prospectus included in a Registration Statement due to pending material developments or other events that have not yet been publicly disclosed and as to which the Holders may Company believes public disclosure would be entitled under this Agreement, if any of materially detrimental to the events described in clauses (i) through (iv) of Section 3(c)(C) occursCompany, the Company shall notify all Holders to such effect, and, upon receipt of such notice, each such Holder shall immediately discontinue any sales of Registrable Securities pursuant to such Registration Statement until such Holder has received copies of a supplemented or amended Prospectus or until such Holder is advised in writing by the Company that the then current Prospectus may be used and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. Notwithstanding anything to the contrary herein, the Company shall not exercise its rights under this Section 3(d) to suspend the use its best efforts of a Registration Statement or Prospectus to respond to and correct the eventsell Registrable Securities for a cumulative period exceeding 20 Trading Days.
(de) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each the Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold delivered to a transferee pursuant to a the Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(ml) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required requested by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)controlling person thereof.
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the Commission on SEC a Prospectus or prior to the Filing Deadline, Prospectus supplement or a Periodic Report in respect of an Existing Shelf Registration Statement or an Initial Shelf Registration Statement on Form S-3 (or if such an appropriate form is not under the Securities Act available to for the Company on another form appropriate for such registration sale of the Registrable Securities by the Requesting Holders thereof in accordance herewith) (which shall include a Plan with the intended method or methods of Distribution substantially in the form of Exhibit A attached hereto)distribution thereof, and use its reasonable best efforts to cause the any such Initial Shelf Registration Statement or Existing Shelf Registration Statement to become effective and remain effective as provided herein; provided, however, provided that not less than three (3) Business Days prior to the before filing of the any Initial Shelf Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto with the SEC, the Company shall (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after filed for their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritreview.
(ib) Prepare and file with the Commission SEC such amendments, including post-effective amendments, amendments and prospectus supplements to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to and available for the applicable resale of the Registrable Securities for the Effectiveness Period and to the extent applicable period specified in Sections 2(c); cause any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required prospectus supplement or a Periodic Report and to make any required filing of a Prospectus supplement, and as so supplemented or amended to be filed supplement pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use its commercially reasonable best efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the such Registration Statement during the applicable period Effectiveness Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel as As promptly as possible practicable give notice to the Notice Holders (Ai) when a any Prospectus, Prospectus or any Prospectus supplement supplement, Periodic Report, Registration Statement or post-effective amendment to the a Registration Statement is proposed to be has been filed (but in no event in with the case of this subparagraph (A)SEC and, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request request, following the effectiveness of a Registration Statement under the Securities Act by the Commission SEC or any other Federal federal or state governmental authority for amendments or supplements an amendment to the any Registration Statement or Prospectus or for additional information; a supplement to Prospectus, (iiiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings proceedings for that purpose; , (iiiiv) 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, (v) of the occurrence of a Material Event, and (vi) of the determination by the Company that a post-effective amendment to a Registration Statement will be filed with the SEC, which notice, at the discretion of the Company (or as required pursuant to Section 3(g)), may state that it constitutes a Deferral Notice, in which event the provisions of Section 3(g) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or 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 immediate notice to each Notice Holder and the Purchasers of the withdrawal of any such order.
(e) Deliver to each Notice Holder in connection with any sale of such Notice Holder’s Registrable Securities, as many copies of the Prospectus relating to such Registrable Securities (including each preliminary prospectus) and any amendment or supplement thereto as such Notice Holder may reasonably request. The Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(f) Prior to any public offering of the Registrable Securities pursuant to a Registration Statement, use its commercially reasonable best efforts (i) to register or qualify or cooperate with the Notice Holders in connection with the registration or qualification (or exemption from such registration or qualification) of such Notice Holder’s Registrable Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); and (ivii) if to keep each such registration or qualification (or exemption therefrom) effective during the financial statements included period of the Notice Holder’s offer and sale of their Registrable Securities pursuant to such registration or qualification (or exemption therefrom); provided that the Company will not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.
(g) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of any Registration Statement become ineligible for inclusion therein or the initiation of proceedings with respect to any Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event that makes or the existence of any fact (a “Material Event”) as a result of which any Registration Statement shall contain any untrue statement made of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the Registration Statement light of the circumstances under which they were made, not misleading, or Prospectus (C) the occurrence or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so pending corporate development that, in the reasonable discretion of the Company based on consultation with its counsel, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus for a period of time:
(i) in the case of the clause (B) above, subject to clause (ii) below, as promptly as practicable prepare and file, if necessary pursuant to applicable law, a post-effective amendment to such Registration Statement or a supplement to the Prospectusrelated Prospectus or any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such 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, as the case may be, it will and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation , as thereafter delivered to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any purchasers of the Registrable Securities for sale being sold thereunder and, in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder case of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement, subject to the next sentence, use its commercially reasonable best efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders that the availability of the Registration Statement is suspended (a “Deferral Notice”) and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such information as Notice Holder’s receipt of copies of a supplemented or amended Prospectus, or until it is advised in writing by the Company reasonably agrees should that the Prospectus may be included therein used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use its commercially reasonable best efforts to ensure that the use of the Prospectus may be resumed (iix) make all required filings in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the reasonable judgment of the Company, public disclosure of such Prospectus supplement Material Event would not be prejudicial to or such post-effective amendment contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as practicable after thereafter and (z) in the Company has received notification case of clause (C) above, as soon as in the reasonable discretion of the matters to be incorporated in Company, such Prospectus supplement or post-effective amendment; provided, however, that the suspension is no longer appropriate. The Company shall not be required entitled to take exercise its right under this Section 3(g) to suspend the availability of a Registration Statement or a Prospectus, without incurring or accruing any action obligation to pay Liquidated Damages pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel2(g), violate applicable law.
no more than one (f1) Furnish to each Holder time in any three month period or four (4) times in any twelve month period, and any such period during which the Special Counsel, without charge, at least one conformed copy availability of each the Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to any Prospectus is suspended (the extent requested by such Person (including those previously furnished or incorporated by reference“Deferral Period”) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counselshall, without chargeincurring any obligation to pay Liquidated Damages pursuant to Section 2(g), as many copies of the Prospectus not to exceed 30 days in any three month period or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders 60 days in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto360 day period.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders each Notice Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold or to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable cause such Registrable Securities to be in such denominations and registered in such names as any such Notice Holder may request in writing at least two three (23) Business Days prior to any sale of such Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(ji) Upon the occurrence of Cooperate and assist in any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact filings 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) Cause all Registrable Securities relating to such Registration Statement to be listed on made with the New York Stock Exchange, . Nothing in this Agreement shall be deemed to require the American Stock Exchange Company to facilitate or the Nasdaq Stock Market.
(l) Comply participate in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end any underwritten offering of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed any Notice Holder or, in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of connection with any such Holder who fails (i) underwritten offering, to furnish such information enter into any underwriting agreement or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing provide any auditor’s “comfort letters” or any opinions of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers counsel to any Notice Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementunderwriter.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Jefferies Group Inc /De/)
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Holders and their Special Counsel, Counsel copies of all such documents proposed to be filed, which filed (including documents (other than those incorporated or deemed incorporated by reference) which documents will be subject to the review of such Holders and their Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the and their Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritgood faith.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business within fifteen Trading Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and and, as promptly as reasonably possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the their Special Counsel as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “"review” " of such Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission 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; (iiiiv) 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 (ivv) if of the occurrence of any event or passage of time that makes the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the their Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, however, if the Registration Statement is on Form S-3, then the Company shall not be obligated to provide copies of any financial statements incorporated by reference therein, but only to the extent that such financial statements have been previously filed with the Commission.
(gf) Promptly deliver to each Holder and the their Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement theretothereto and each Holder agrees to comply with the prospectus delivery requirements in accordance with the Securities Act in connection with sales made by such Holder of the Registrable Securities.
(hg) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the their Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, howeverPROVIDED, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(ih) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c)(v), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require, at any time prior to the third Trading Day prior to the Filing Date, each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and and, if requested by the distribution of such Registrable Securities as is required by law or Commission, the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each casecontrolling person thereof, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities three Trading Days of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement's request.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Peregrine Pharmaceuticals Inc)
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall, (i) furnish to the Special Counsel, Holders copies of all such documents proposed to be filed, filed (including documents incorporated or deemed incorporated by reference to the extent requested by such Person) which documents (other than those incorporated by reference) will be subject to the review of such Special CounselHolders, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin fifteen days, to any comments received from the Commission with respect to the a Registration Statement or any amendment thereto and and, as promptly as possible reasonably possible, upon request, provide the Holders true and complete copies of all correspondence from and to the Commission relating to the such Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the a Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold and the Special Counsel l as promptly as reasonably possible (Aand, in the case of (i)(A) below, not less than three Trading Days prior to such filing) and (if requested by any such Person) confirm such notice in writing promptly following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission notifies the Company whether there will be a “review” of such a Registration Statement and whenever the Commission comments in writing on such Registration StatementStatement (the Company shall upon request provide true and complete copies thereof and all written responses thereto to each of the Holders); and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority during the period of effectiveness of a Registration Statement for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of the a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the such Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best commercially reasonable efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special CounselHolder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(hg) Prior to any public offering of Registrable Securities, use its best commercially reasonable efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or qualified, subject the Company to any material tax in any such jurisdiction where it is not then so subjectsubject or file a general consent to service of process in any such jurisdiction.
(ih) Cooperate with the Holders 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, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(ji) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv3(c), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (ii) through (v) of Section 3(c) above to suspend the use of the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(i) to suspend the availability of a Registration Statement and Prospectus, subject to the payment of liquidated damages pursuant to Section 2(b), for a period not to exceed 60 days (which need not be consecutive days) in any 12 month period.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158Commission.
(mk) Request The Company may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required requested by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)controlling person thereof.
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business two Trading Days prior to the filing of the Initial or any Demand Registration Statement or any related Prospectus or any amendment or supplement thereto, the Company shall shall: (i) furnish to the Special Counsel, Purchasers copies of all such documents those sections of the Initial or Demand Registration Statement or Prospectus proposed to be filed, which documents (other than those incorporated by reference) will be subject filed that relate to the review of Purchasers or the Transaction (such Special Counselsections, the “Affected Sections”) and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel event that the Company proposes to such Holders, to conduct a reasonable investigation within the meaning revise any of the Securities ActAffected Sections in any amendment to the Initial or any Demand Registration Statement or any supplement to the Prospectus, furnish to the Purchasers copies of such revised Affected Sections. The Company shall not file the Initial or any Demand Registration Statement or any such related Prospectus or any amendments or supplements thereto to which if the Holders of a majority of the Registrable Securities or the Special Counsel Purchasers and their counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel good faith to the Company determines Company’s proposed descriptions of the Purchasers or the Transaction set forth in writing that such objection is without meritthe Affected Sections.
(b) (i) Prepare Use its commercially reasonable best efforts to prepare and file with the Commission such amendments, including post-effective amendments, to the Initial or any Demand Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the such Initial or Demand Registration Statement continuously effective as to the applicable Initial or Additional Registrable Securities for the Initial or Subsequent Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Initial or Demand Registration Statements Statement in order to register for resale under the Securities Act all of the Initial or Additional Registrable Securities, as the case may be; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission with respect to the Initial or Demand Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statementthereto; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Initial or Additional Registrable Securities covered by the Initial or Demand Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Initial or Demand Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Initial or Additional Registrable Securities to be sold and the Special Counsel as promptly as reasonably possible and (Aif requested by any such Person) confirm such notice in writing (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the Initial or any Demand Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)has been filed; (B) when the Commission notifies the Company whether there will be a “review” of such Initial or Demand Registration Statement and whenever the Commission comments in writing on such Registration Statementany Affected Sections (in which case the Company shall provide true and complete copies of the Company’s proposed responses to the Commission’s comments on the Affected Sections to each of the Purchasers); and (C) with respect to the Initial or any Demand Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Initial or any Demand Registration Statement or Prospectus or for additional informationinformation relating thereto; provided, however, that under no circumstances shall the Company be required to disclose material non-public information in connection with the notice pursuant to this Section 3(c); (iiiii) of the issuance by the Commission of any stop order suspending the effectiveness of the Initial or any Demand Registration Statement covering any or all of the Initial or Additional Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) 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 Initial or Additional Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; and (ivv) if of the financial statements included in suspension of the Initial or any Demand Registration Statement become ineligible for inclusion therein pursuant to Sections 3 or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event4(a).
(d) Use its commercially reasonable best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the Initial or any Demand Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Initial or Additional Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special CounselHolder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons Holder may reasonably request; and request in writing. Subject to any notice by the Company in accordance with Section 3(c), the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Initial or Additional Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(if) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing the Initial or Demand Registrable Securities to be sold delivered to a transferee pursuant to a the Initial or any Demand Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Initial or Additional Registrable Securities to be in such denominations and registered in such names as any Holder such Holders may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(jg) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii3(a)(x) or (ivSection 4(a)(x), as the case may be, as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Initial or any Demand Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Initial or any Demand Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(kh) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the The Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request may require each selling Holder to furnish to the Company information regarding a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statementand, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required requested by the Securities Act or any similar federal statute then in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited toCommission, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)controlling person thereof.
Appears in 1 contract
Samples: Registration Rights Agreement (Nu Skin Enterprises Inc)
Registration Procedures. In connection with The Company will keep the Company’s Underwriter advised in writing as to the initiation of each registration obligations hereunderand as to the completion thereof. At its expense, the Company shallwill use its reasonable best efforts to:
(a) Prepare Permit the Underwriter and file a single firm of counsel, initially Xxxxxxx Xxxx & Xxxxx LLP or such other counsel as thereafter designated as Underwriter's counsel by the Underwriter, to review and comment upon the Registration Statement and all amendments and supplements thereto at least five (5) days prior to their filing with the Commission on or prior SEC, and not file any document in a form to which such counsel reasonably objects. The Company shall not submit a request for acceleration of the Filing Deadline, effectiveness of a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the filing of the Registration Statement or any related Prospectus or any amendment or supplement theretothereto that relates to the transactions contemplated by this Agreement without the prior approval of such counsel, which approval shall not be unreasonably withheld;
(b) The Company shall provide a CUSIP number, a transfer agent and registrar for all such Registrable Securities;
(c) If requested by the Underwriter, the Company shall (i) furnish to the Special Counsel, copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, immediately incorporate in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement prospectus supplement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, amendment such information as the Underwriter requests to be included therein relating to the Registration Statement as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period sale and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure distribution of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possibleincluding, and in no event later than 10 Business Dayswithout limitation, to any comments received from the Commission information with respect to the Registration Statement or any amendment thereto number of Registrable Securities being issued, the Underwriting Price being paid therefor and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to any other terms of the disposition underwritten offering of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold in such offering; 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; and in connection therewith supplement or make amendments to any Registration Statement if requested by the Special Counsel Underwriter;
(d) Furnish such number of Prospectuses and amendments and supplements thereto, and other documents incident thereto, as promptly the Underwriter from time to time may reasonably request; and
(e) Notify the Underwriter and its counsel (as possible designated in writing by the Underwriter) promptly, and confirm such notice (Aa "Notice") in writing, (i) when a Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness)effective, and after the effectiveness thereof: (iii) of any request by the Commission or any other Federal or state governmental authority SEC for amendments or supplements to the Registration Statement or related Prospectus or for additional information; (ii) of the issuance by the Commission 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; (iii) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company under Section 2 hereof, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the Before filing of the any Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto with the SEC, the Company shall (i) furnish to the Special Counsel, Initial Purchaser copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counsel, filed and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond give reasonable consideration to such inquiries comments as the Initial Purchaser reasonably shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing propose within three (3) Business Days after their receipt thereof, unless counsel of the delivery of such copies to the Company determines in writing that such objection is without meritInitial Purchaser.
(ib) Prepare Subject to the provisions of Section 3(h), prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the each Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to for the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included period specified in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securities2(a); (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, use all reasonable efforts to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all Registrable Securities securities covered by the such Registration Statement during the applicable period Effectiveness Period in accordance with the intended methods of disposition by the Holders sellers thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify As promptly as practicable give notice to the Notice Holders of Registrable Securities to be sold and the Special Counsel as promptly as possible Initial Purchaser (Ai) when a any Prospectus, Prospectus or any Prospectus supplement supplement, Registration Statement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)other than any such Prospectus supplement, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever or post-effective amendment to a Registration Statement which is filed solely to name additional selling security holders or to reflect any other matters that are not of a material nature) has been filed with the Commission comments in writing on such Registration Statement; and (C) SEC and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective been declared effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request request, following the effectiveness of the Initial Shelf Registration Statement under the Securities Act, by the Commission SEC or any other Federal federal or state governmental authority for amendments or supplements to the any Registration Statement or related Prospectus or for additional information; , (iiiii) of the issuance by the Commission SEC or any other federal or state governmental authority of any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation or threatening of any Proceedings proceedings for that purpose; purpose and (iiiiv) 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; , which notice may, at the discretion of the Company (or as required pursuant to Section 3(h)), state that it constitutes a Deferral Notice, in which event the provisions of Section 3(h) shall apply.
(d) Use all reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement or 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.
(e) Promptly as reasonably practicable furnish to each Notice Holder and the Initial Purchaser, upon their request and without charge, at least one (iv1) if the financial statements included in conformed copy of the Registration Statement become ineligible for inclusion therein or of the occurrence of and any event that makes any statement made in the Registration Statement or Prospectus or any document amendment thereto, including financial statements but excluding schedules, all documents incorporated or deemed to be incorporated therein by reference untrue and all exhibits (unless requested in any material respect or that requires any revisions writing to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement Company by such Notice Holder or the ProspectusInitial Purchaser, as the case may be).
(f) During the Effectiveness Period, deliver to each Notice Holder in connection with any sale of Registrable Securities pursuant to a 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 Notice Holder may reasonably request; and the Company hereby consents (except during such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such Prospectus or each amendment or supplement thereto by each Notice Holder in connection with any offering and sale of the Registrable Securities covered by such Prospectus or any amendment or supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use all reasonable efforts to register or qualify or cooperate with the Notice 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 laws of such jurisdictions within the United States as any Notice Holder reasonably requests in writing (which request may be included in the Notice and Questionnaire); prior to any public offering of the Registrable Securities pursuant to the Shelf Registration Statement, use all reasonable efforts to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period in connection with such Notice 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 necessary to enable the disposition in such jurisdictions of such Registrable Securities in the manner set forth in the relevant Registration Statement and the related Prospectus; provided, that the Company will not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it will would not otherwise be required to qualify but for this Agreement or (ii) take any action that would subject it to general service of process in suits or to taxation in any such jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending the effectiveness of the Shelf Registration Statement or the initiation of proceedings with respect to the Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the existence of any fact (a "Material Event") as a result of which any Registration Statement shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (C) the occurrence or existence of any pending corporate development that, in the discretion of the Company, makes it appropriate to suspend the availability of the Shelf Registration Statement and the related Prospectus, (i) in the case of clause (B) above, subject to the next sentence, as promptly as practicable prepare and file a post-effective amendment to such Registration Statement or a supplement to the related Prospectus or any document incorporated therein by reference or file any other required document that would be incorporated by reference into such Registration Statement and Prospectus so that such Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and such Prospectus does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation , as thereafter delivered to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any purchasers of the Registrable Securities for sale being sold thereunder, and, in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder case of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to a Registration Statement, subject to the Registration Statement such information next sentence, use all reasonable efforts to cause it to be declared effective as the Company promptly as is reasonably agrees should be included therein practicable, and (ii) make give notice to the Notice Holders that the availability of the Shelf Registration Statement is suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable Securities pursuant to the Registration Statement until such Notice Holder's receipt of copies of the supplemented or amended Prospectus provided for in clause (i) above, or until it is advised in writing by the Company that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The Company will use all required filings reasonable efforts to ensure that the use of the Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the Company, public disclosure of such Prospectus supplement Material Event would not be prejudicial to or such post-effective amendment contrary to the interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as reasonably practicable after thereafter and (z) in the Company has received notification case of the matters to be incorporated in such Prospectus supplement or post-effective amendment; providedclause (C) above, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that wouldas soon as, in the written opinion sole judgment of counsel for the Company (addressed to Company, such suspension is no longer appropriate. The period during which the Special Counsel), violate applicable law.
(f) Furnish to each Holder and availability of the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to any Prospectus is suspended (the extent requested by such Person (including those previously furnished or incorporated by reference"Deferral Period") promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counselshall, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents incurring any obligation to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
pay liquidated damages pursuant to Section 2(e), not exceed thirty (h30) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company shall not be required to qualify generally to do business days in any jurisdiction where it is not then so qualified three (3) month period or to take any action that would subject it to general service of process ninety (90) days in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subjecttwelve (12) month period.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission SEC and make generally available to its security holders earnings securityholders earning statements (which need not be audited) satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not thereunder (or any similar rule promulgated under the Securities Act) no later than 45 days after the end of any 312-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company commencing after the effective date of the a Registration Statement, which statement statements shall conform cover said 12-month periods.
(j) If reasonably requested in writing by a Holder or Holders of Registrable Securities and solely at the Company's discretion, the Company will consider an underwritten offering of Registrable Securities held by such Holder or Holders upon terms and conditions to be agreed upon at the requirements time of Rule 158such underwritten offering.
(k) Cooperate with each Notice Holder to facilitate the timely preparation and delivery of certificates representing Registrable Securities sold pursuant to a Registration Statement, and cause such Registrable Securities to be in such denominations as are permitted by the Indenture and registered in such names as such Notice Holder may request in writing at least two Business Days prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities covered by each Registration Statement not later than the effective date of such Registration Statement and provide the Trustee for the XXXXx and the transfer agent for the Common Stock with printed certificates for the Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.
(m) Request each selling Holder Make a reasonable effort to furnish to the Company provide such information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission for any filings required to be disclosed in made with the Registration StatementNational Association of Securities Dealers, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.Inc.
(n) If Upon (i) there is material non-public information regarding the Company which filing of the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose Initial Shelf Registration Statement and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity the effectiveness of the Initial Shelf Registration Statement, announce the same, in each case by release to Reuters Economic Services and Bloomberg Business News.
(includingo) Cause the Indenture to be qualified under the TIA not later than the effective date of any Registration Statement; and in connection therewith, but not limited to, cooperate with the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available Trustee to effect such changes to the Company which Indenture as may be required for the Board reasonably determines not Indenture to be so qualified in accordance with the Company’s best interest terms of the TIA and execute, and use all reasonable efforts to disclose and which cause the Company would Trustee to execute, all documents as may be required to disclose under effect such changes, and all other forms and documents required to be filed with the Registration Statement, then SEC to enable the Company may postpone or suspend filing or effectiveness of Indenture to be so qualified in a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”)timely manner.
Appears in 1 contract
Samples: Registration Rights Agreement (Affiliated Managers Group Inc)
Registration Procedures. In connection with ASSAC’s obligations with respect to the Company’s registration obligations of the Registrable Securities hereunder, the Company ASSAC shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business five Trading Days prior to the filing of the Registration Statement or and the filing of any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to the Special Counsel, ASSAC Shareholder copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject to the review of such Special Counselthe ASSAC Shareholder, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, the ASSAC Shareholder to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not .
(b) Not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders ASSAC Shareholder shall reasonably object, provided that, ASSAC is notified of a majority such objection in writing no later than four Trading Days after the ASSAC Shareholder has been so furnished copies of the Registrable Securities Registration Statement or any related Prospectus or amendment or supplement thereto. The ASSAC Shareholder agrees to furnish to ASSAC a completed Questionnaire in the Special Counsel shall reasonably object in writing within three form attached to this Agreement as Annex B (3a “Selling Shareholder Questionnaire”) Business not less than two Trading Days after their receipt thereof, unless counsel prior to the Company determines Filing Date or by the end of the fourth Trading Day following the date on which the ASSAC Shareholder receives draft materials in writing that such objection is without meritaccordance with this Section.
(c) (i) Prepare prepare and file with the Commission SEC such amendments, including post-effective amendments, to the a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission SEC such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause amend or supplement the related Prospectus to be amended or supplemented by any required Prospectus supplementsupplement (subject to the terms of this Agreement), and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; (iii) respond as promptly as possible, and in no event later than 10 Business Days, reasonably possible to any comments received from the Commission SEC with respect to the a Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders ASSAC Shareholder true and complete copies of all correspondence from and to the Commission SEC relating to the Registration Statementa Registration; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders ASSAC Shareholder thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(cd) Notify the Holders ASSAC Shareholder (which notice shall, pursuant to clauses (iii) through (vi) of Registrable Securities this Section 3(d), shall also be accompanied by an instruction to be sold and suspend the Special Counsel use of the Prospectus until the requisite changes have been made) as promptly as possible (Aand, in the case of (i)(A) below, not less than one Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to the a Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A), less than three (3) Business Days prior to date of such filing)filed; (B) when the Commission SEC notifies the Company ASSAC whether there will be a “review” of such Registration Statement and whenever the Commission SEC comments in writing on such Registration Statement; and (C) with respect to the a Registration Statement or any post-effective amendment, when the same has become effective effective; (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iii) of any request by the Commission SEC or any other Federal or state governmental authority for amendments or supplements to the a Registration Statement or Prospectus or for additional information; (iiiii) 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 covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iiiiv) of the receipt by the Company ASSAC 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 (ivv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event or passage of time that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in the a Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the a Registration Statement, Prospectus or other documents so that, in the case of the a Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation ; and (vi) the occurrence or existence of any pending corporate development with respect to any remedies to which the Holders ASSAC (including its subsidiaries) that ASSAC believes may be entitled under this Agreementmaterial and that, if in the determination of ASSAC, makes it not in the best interest of ASSAC to allow continued availability of a Registration Statement or Prospectus; provided that any and all of such information shall remain confidential to the ASSAC Shareholder until such information otherwise becomes public, unless disclosure by the ASSAC Shareholder is required by law; provided, further, that notwithstanding the ASSAC Shareholder’s agreement to keep such information confidential, the ASSAC Shareholder makes no acknowledgement that any such information is material, non-public information; or (vi) any time any of the events described representations and warranties of ASSAC contained in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts any agreement contemplated hereby ceases to respond to be true and correct the event.in all material respects;
(de) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the a Registration Statement Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(ef) If requested by any Holder of Registrable Securitiesthe ASSAC Shareholder, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company ASSAC reasonably agrees should 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 ASSAC has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(fg) Furnish to each Holder and the Special CounselASSAC Shareholder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by the ASSAC Shareholder, and all exhibits to the extent requested by such Person the ASSAC Shareholder (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the CommissionSEC.
(gh) Promptly deliver to each Holder and the Special CounselASSAC Shareholder, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; .
(i) Subject to the terms of this Agreement, ASSAC, on behalf of itself, its successors and the Company assigns, hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders ASSAC Shareholder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).
(hj) Effect a filing with respect to the public offering contemplated by the Registration Statement (an “Issuer Filing”) with the Financial Industry Regulatory Authority (“FINRA”) pursuant to applicable FINRA Rules (including, without limitation FINRA Rule [5110]) within one Trading Day of the date that the Registration Statement is first filed with the SEC and pay the filing fee required by such Issuer Filing. ASSAC shall use its best reasonable efforts to pursue the Issuer Filing until FINRA issues a letter confirming that it does not object to the terms of the offering contemplated by the Registration Statement.
(k) Prior to any public offering resale of Registrable SecuritiesSecurities by the ASSAC Shareholder, use its best efforts to register or qualify or cooperate with the selling Holders and the Special Counsel ASSAC Shareholder in connection with the registration or qualification (or exemption from such registration the Registration or qualification) of such Registrable Securities for offer and sale the resale by the ASSAC Shareholder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder the ASSAC Shareholder reasonably requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a each Registration Statement; provided, however, that the Company ASSAC shall not be required to (i) qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would qualified, (ii) subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company ASSAC to any material tax in any such jurisdiction where it is not then so subjectsubject or (iii) file a general consent to service of process in any such jurisdiction.
(il) Cooperate If requested by the ASSAC Shareholder, cooperate with the Holders ASSAC Shareholder 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, to the extent permitted by applicable law and the Purchase AgreementSecurities Act, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder the ASSAC Shareholder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statementrequest.
(jm) Upon the occurrence of any event contemplated by this Section 3(c)(C)(iii) or (iv)3, as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the a Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the a Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If ASSAC notifies the ASSAC Shareholder in accordance with clauses (iii) through (v) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the ASSAC Shareholder shall suspend use of such Prospectus. ASSAC will use its best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. ASSAC shall be entitled to exercise its right under this Section 3(m) to suspend the availability of a Registration Statement and Prospectus, subject to the payment of partial liquidated damages pursuant to Section 2(b) commencing thirty days after the applicable suspension.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(ln) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available SEC.
(o) Use its best efforts to its security holders earnings statements satisfying the provisions of Section 11(a) of the cause all Registrable Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of relating to the Registration Statement, to continued to be quoted or listed on a securities exchange, quotation system or market, if any, on which statement shall conform to the requirements of Rule 158similar securities issued by ASSAC are then listed or traded.
(mp) Request each selling Holder ASSAC may require the ASSAC Shareholder to furnish to ASSAC a statement as to the Company information regarding such Holder and number of Ordinary Shares beneficially owned by the distribution of such Registrable Securities as is ASSAC Shareholder and, if required by law the SEC, the persons or entities thereof that have voting and dispositive control over the Commission shares. During any periods that ASSAC is unable to be disclosed in meet its obligations hereunder with respect to the Registration Statement, and the Company may exclude from such registration of the Registrable Securities of any such Holder who solely because the ASSAC Shareholder fails (i) to furnish such information or (ii) to agree to furnish, upon within five Trading Days of ASSAC’s request, any liquidated damages that are accruing at such additional information regarding such Holder as time shall be tolled and any Event that may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition occur solely because of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement delay shall be suspended until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it information is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed delivered to be incorporated by reference in such Prospectus or Registration StatementASSAC.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Asia Special Situation Acquisition Corp)
Registration Procedures. (a) In connection with any Shelf Registration Statement and any Prospectus required by this Agreement to permit the Company’s registration obligations hereundersale or resale of Registrable Securities, the Company shall:
(ai) Prepare and file with the Commission on or prior use commercially reasonable efforts to the Filing Deadline, a keep such Shelf Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become continuously effective and remain effective as provided herein; providedprovide all requisite financial statements (including, howeverif required by the Securities Act or any regulation thereunder, that not less than three (3) Business Days prior to the filing financial statements of the Guarantors) until all Registrable Securities have been sold; upon the occurrence of any event that would cause any such Shelf Registration Statement or any related the Prospectus contained therein (A) to contain a material misstatement or any amendment omission or supplement thereto(B) not to be effective and usable for resale of Registrable Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Shelf Registration Statement, in the case of clause (i) furnish A), correcting any such misstatement or omission, and, if Commission review is required, use their reasonable best efforts to the Special Counsel, copies of all cause such documents proposed amendment to be filed, which documents (other than those incorporated by referencedeclared effective and such Shelf Registration Statement and the related Prospectus to become usable for their intended purpose(s) will be subject to the review of such Special Counsel, and as soon as practicable thereafter;
(ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants use commercially reasonable efforts to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare prepare and file with the Commission such amendments, including amendments and post-effective amendments, amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective as to the applicable until all Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securitieshave been sold; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and to comply fully with the applicable provisions of Rules 424 and 430A under the Securities Act in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statementa timely manner; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities securities covered by the such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of disposition distribution by the Holders sellers thereof set forth in the such Shelf Registration Statement as so amended or in such Prospectus as so supplemented.supplement to the Prospectus;
(ciii) Notify the Holders of advise each Holder whose Registrable Securities to be sold and the Special Counsel as promptly as possible have been included in a Shelf Registration Statement, (A) when a the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the such Shelf Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iB) of any request by the Commission for amendments to the Shelf Registration Statement or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; information relating thereto, (iiC) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement covering any under the Securities Act or all of the Registrable Securities or the initiation of suspension by any Proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension state securities commission of the qualification or exemption from qualification of any of the Registrable Securities for offering or sale in any jurisdiction, or the initiation or threatening of any Proceeding proceeding for such purpose; and (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or any of the occurrence preceding purposes, (D) of the happening of any event that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Shelf Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or blue sky laws, the Company shall use commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(iv) furnish without charge, upon request, to each selling Holder named in a Shelf Registration Statement, and each of the underwriter(s), if any, before filing with the Commission, copies of the Shelf Registration Statement or any Prospectus included therein or any amendments or supplements to any such Shelf Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Shelf Registration Statement), which documents will be subject to the review and comment of such Holders and underwriter(s) in connection with such sale, if any, for a period of at least three Business Days, and the Company will not file any such Shelf Registration Statement or Prospectus or any document amendment or supplement to any such Shelf Registration Statement or Prospectus (including all such documents incorporated or deemed by reference) to be incorporated therein which a Holder of Registrable Securities covered by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the such Shelf Registration Statement or the Prospectusunderwriter(s), if any, shall reasonably object in writing within three Business Days after the receipt thereof (such objection to be deemed timely made upon confirmation of telecopy transmission within such period). The objection of a Holder or underwriter, if any, shall be deemed to be reasonable if such Shelf Registration Statement, amendment, Prospectus or supplement, as the case may beapplicable, it will not contain any untrue statement of as proposed to be filed, contains a material fact misstatement or omit to state any material fact required to be stated therein or necessary to make omission. Notwithstanding the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occursforegoing, the Company shall use its best efforts not be required to respond to and correct take any actions under this clause (iv) that are not, in the event.reasonable opinion of counsel for the Company, in compliance with applicable law;
(dv) Use its best efforts promptly prior to avoid the issuance of, or, if issued, use best efforts filing of any document that is to obtain the withdrawal of, (i) any order suspending the effectiveness of the be incorporated by reference into a Shelf Registration Statement or Prospectus in connection with such registration or sale, if any, provide copies of such document to each selling Holder named in the Shelf Registration Statement in connection with such exchange, registration or sale, if any, and to the underwriter(s), if any, make the Company’s representatives available for discussion of such document and other customary due diligence matters subject to execution and delivery of customary confidentiality agreements, and include such information in such document prior to the filing thereof as such selling Holders or underwriter(s), if any, reasonably may request;
(iivi) make available at reasonable times for inspection by the selling Holders, the underwriter(s), if any, participating in any suspension of the qualification (disposition pursuant to such Shelf Registration Statement and any attorney or exemption from qualification) of accountant retained by such selling Holder or any of the Registrable Securities for sale in any jurisdictionunderwriter(s), at all financial and other records, pertinent corporate documents and properties of each of the earliest practicable moment.
(e) If Company and the Guarantors and cause the Company’s and the Guarantors’ officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney or accountant in connection with such Shelf Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness and to participate in meetings with investors to the extent requested by the underwriter(s), if any; provided that any Holder of Registrable Securitiesor representative thereof requesting or receiving such information shall agree to be bound by reasonable confidentiality agreements and procedures with respect thereto;
(vii) if requested by any selling Holders or the underwriter(s), (i) if any, promptly incorporate in any Shelf Registration Statement or Prospectus, pursuant to a Prospectus supplement or post-effective amendment to the Registration Statement if necessary, such information as such selling Holders and underwriter(s), if any, may reasonably request to have included therein, including, without limitation, information relating to the Company reasonably agrees should “Plan of Distribution” of the Registrable Securities, information with respect to the principal amount of Registrable Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be included therein sold in such offering; 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 is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided;
(viii) upon request, however, that furnish to each selling Holder and each of the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counselunderwriter(s), violate applicable law.
(f) Furnish to each Holder and the Special Counselif any, without charge, at least one conformed copy of each the Shelf Registration Statement Statement, as first filed with the Commission, and of each amendment thereto, including financial statements and schedules, and schedules (without all exhibits to the extent requested by such Person (including those previously furnished or documents incorporated by reference) promptly after the filing of such documents with the Commission.reference therein or exhibits thereto, unless requested);
(gix) Promptly upon request, deliver to each selling Holder and each of the Special Counselunderwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of preliminary prospectus) and each any amendment or supplement thereto as such Persons reasonably may reasonably request; provided, that if no Shelf Registration Statement is effective or no Prospectus is usable, the Company shall deliver to each selling Holder a notice to that effect in response to such request; each of the Company and the Company Guarantors hereby consents to the use (in accordance with law) of such the Prospectus and each any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the sale of the Registrable Securities covered by such the Prospectus and or any amendment or supplement thereto;
(x) upon the reasonable request of such Holder, enter into such agreements (including an underwriting agreement containing customary terms), and make such representations and warranties, and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Registrable Securities pursuant to a Shelf Registration Statement contemplated by this Agreement, all to such extent as may be customarily and reasonably requested by any Holder of Registrable Securities or underwriter in connection with any sale or resale pursuant to a Shelf Registration Statement contemplated by this Agreement; and whether or not an underwriting agreement is entered into and whether or not the registration is an Underwritten Registration, the Company shall:
(A) upon the request of any Holder, furnish to each selling Holder and each underwriter, if any, in such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the effectiveness of the Shelf Registration Statement:
(1) an opinion and 10b-5 letter in customary form of counsel for the Company and the Guarantors, covering the matters customarily covered in opinions and 10b-5 letters requested in similar underwritten offerings and such other matters as such parties may reasonably request; and
(2) use reasonable best efforts to obtain a customary comfort letter, dated the date of effectiveness of the Shelf Registration Statement, from the Company’s independent accountants, in the customary form and covering matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings;
(B) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with clause (A) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company or any of the Guarantors.
(hxi) Prior prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Holders, the underwriter(s), if any, and the Special Counsel their respective counsel in connection with the registration or and qualification (or exemption from such registration or qualification) of such the Registrable Securities for offer and sale under the state securities or Blue Sky blue sky laws of such jurisdictions within as the United States as any Holder requests in writingselling Holders or underwriter(s), to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period if any, may request and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Shelf Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.;
(ixii) Cooperate with use their reasonable best efforts to cause the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities covered by the Shelf Registration Statement to be sold pursuant registered with or approved by such other governmental agencies or authorities as may be necessary to a Registration Statementenable the seller or sellers thereof or the underwriter(s), which certificates shall be freeif any, to consummate the extent permitted by applicable law and the Purchase Agreement, disposition of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.;
(jxiii) Upon the occurrence of if any fact or event contemplated by Section 3(c)(C)(iii3(a)(iii)(D) hereof shall exist or (iv), as promptly as possiblehave occurred, prepare a supplement or amendment, including a post-effective amendment, amendment to the Shelf Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and reference or file any other required document so that, as thereafter delivereddelivered to the purchasers of Registrable Securities, neither the Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading;
(xiv) cooperate and assist in any filings required to be made with FINRA and in the light performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the circumstances under which they were made, not misleading.rules and regulations of FINRA; and
(kxv) Cause all Registrable Securities relating otherwise use commercially reasonable efforts to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holders holders, as soon as practicable, a consolidated earnings statements satisfying statement meeting the provisions requirements of Section 11(a) of Rule 158 under the Securities Act and Rule 158 (which need not later than 45 days after be audited) for the end of any 3twelve-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Shelf Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Horizon Lines, Inc.)
Registration Procedures. (a) In connection with any Shelf Registration Statement and any Prospectus required by this Agreement to permit the Company’s registration obligations hereundersale or resale of Registrable Securities, the Company shall:
(ai) Prepare and file with the Commission on or prior use commercially reasonable efforts to the Filing Deadline, a keep such Shelf Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become continuously effective and remain effective as provided herein; providedprovide all requisite financial statements (including, howeverif required by the Securities Act or any regulation thereunder, that not less than three (3) Business Days prior to the filing financial statements of the Guarantors) until all Registrable Securities have been sold; upon the occurrence of any event that would cause any such Shelf Registration Statement or any related the Prospectus contained therein (A) to contain a material misstatement or any amendment omission or supplement thereto(B) not to be effective and usable for resale of Registrable Securities during the period required by this Agreement, the Company shall file promptly an appropriate amendment to such Shelf Registration Statement, in the case of clause (i) furnish A), correcting any such misstatement or omission, and, if Commission review is required, use their commercially reasonable efforts to the Special Counsel, copies of all cause such documents proposed amendment to be filed, which documents (other than those incorporated by referencedeclared effective and such Shelf Registration Statement and the related Prospectus to become usable for their intended purpose(s) will be subject to the review of such Special Counsel, and as soon as practicable thereafter;
(ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants use commercially reasonable efforts to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without merit.
(i) Prepare prepare and file with the Commission such amendments, including amendments and post-effective amendments, amendments to the Shelf Registration Statement as may be necessary to keep the Shelf Registration Statement continuously effective as to the applicable until all Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securitieshave been sold; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and to comply fully with the applicable provisions of Rules 424 and 430A under the Securities Act in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statementa timely manner; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities securities covered by the such Shelf Registration Statement during the applicable period in accordance with the intended method or methods of disposition distribution by the Holders sellers thereof set forth in the such Shelf Registration Statement as so amended or in such Prospectus as so supplemented.supplement to the Prospectus;
(ciii) Notify the Holders of advise each Holder whose Registrable Securities to be sold and the Special Counsel as promptly as possible have been included in a Shelf Registration Statement, (A) when a the Prospectus or any Prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the such Shelf Registration Statement or any post-effective amendmentamendment thereto, when the same has become effective effective, (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iB) of any request by the Commission for amendments to the Shelf Registration Statement or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; information relating thereto, (iiC) of the issuance by the Commission of any stop order suspending the effectiveness of the Shelf Registration Statement covering any under the Securities Act or all of the Registrable Securities or the initiation of suspension by any Proceedings for that purpose; (iii) of the receipt by the Company of any notification with respect to the suspension state securities commission of the qualification or exemption from qualification of any of the Registrable Securities for offering or sale in any jurisdiction, or the initiation or threatening of any Proceeding proceeding for such purpose; and (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or any of the occurrence preceding purposes, (D) of the happening of any event that makes any statement of a material fact made in the Shelf Registration Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated by reference therein untrue, or that requires the making of any additions to or changes in the Shelf Registration Statement or the Prospectus in order to make the statements therein not misleading. If at any time the Commission shall issue any stop order suspending the effectiveness of the Shelf Registration Statement, or any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of the Registrable Securities under state securities or blue sky laws, the Company shall use commercially reasonable efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(iv) furnish without charge, upon request, to each selling Holder named in a Shelf Registration Statement, and each of the underwriter(s), if any, before filing with the Commission, copies of the Shelf Registration Statement or any Prospectus included therein or any amendments or supplements to any such Shelf Registration Statement or Prospectus (including all documents incorporated by reference after the initial filing of such Shelf Registration Statement), which documents will be subject to the review and comment of such Holders and underwriter(s) in connection with such sale, if any, for a period of at least three Business Days, and the Company will not file any such Shelf Registration Statement or Prospectus or any document amendment or supplement to any such Shelf Registration Statement or Prospectus (including all such documents incorporated or deemed by reference) to be incorporated therein which a Holder of Registrable Securities covered by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the such Shelf Registration Statement or the Prospectusunderwriter(s), if any, shall reasonably object in writing within three Business Days after the receipt thereof (such objection to be deemed timely made upon confirmation of telecopy transmission within such period). The objection of a Holder or underwriter, if any, shall be deemed to be reasonable if such Shelf Registration Statement, amendment, Prospectus or supplement, as the case may beapplicable, it will not contain any untrue statement of as proposed to be filed, contains a material fact misstatement or omit to state any material fact required to be stated therein or necessary to make omission. Notwithstanding the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occursforegoing, the Company shall use its best efforts not be required to respond to and correct take any actions under this clause (iv) that are not, in the event.reasonable opinion of counsel for the Company, in compliance with applicable law;
(dv) Use its best efforts promptly prior to avoid the issuance of, or, if issued, use best efforts filing of any document that is to obtain the withdrawal of, (i) any order suspending the effectiveness of the be incorporated by reference into a Shelf Registration Statement or Prospectus in connection with such registration or sale, if any, provide copies of such document to each selling Holder named in the Shelf Registration Statement in connection with such exchange, registration or sale, if any, and to the underwriter(s), if any, make the Company’s representatives available for discussion of such document and other customary due diligence matters subject to execution and delivery of customary confidentiality agreements, and include such information in such document prior to the filing thereof as such selling Holders or underwriter(s), if any, reasonably may request;
(iivi) make available at reasonable times for inspection by the selling Holders, the underwriter(s), if any, participating in any suspension of the qualification (disposition pursuant to such Shelf Registration Statement and any attorney or exemption from qualification) of accountant retained by such selling Holder or any of the Registrable Securities for sale in any jurisdictionunderwriter(s), at all financial and other records, pertinent corporate documents and properties of each of the earliest practicable moment.
(e) If Company and the Guarantors and cause the Company’s and the Guarantors’ officers, directors and employees to supply all information reasonably requested by any such Holder, underwriter, attorney or accountant in connection with such Shelf Registration Statement or any post-effective amendment thereto subsequent to the filing thereof and prior to its effectiveness and to participate in meetings with investors to the extent requested by the underwriter(s), if any; provided that any Holder of Registrable Securitiesor representative thereof requesting or receiving such information shall agree to be bound by reasonable confidentiality agreements and procedures with respect thereto;
(vii) if requested by any selling Holders or the underwriter(s), (i) if any, promptly incorporate in any Shelf Registration Statement or Prospectus, pursuant to a Prospectus supplement or post-effective amendment to the Registration Statement if necessary, such information as such selling Holders and underwriter(s), if any, may reasonably request to have included therein, including, without limitation, information relating to the Company reasonably agrees should “Plan of Distribution” of the Registrable Securities, information with respect to the principal amount of Registrable Securities being sold to such underwriter(s), the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be included therein sold in such offering; 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 is notified of the matters to be incorporated in such Prospectus supplement or post-effective amendment; provided;
(viii) upon request, however, that furnish to each selling Holder and each of the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counselunderwriter(s), violate applicable law.
(f) Furnish to each Holder and the Special Counselif any, without charge, at least one conformed copy of each the Shelf Registration Statement Statement, as first filed with the Commission, and of each amendment thereto, including financial statements and schedules, and schedules (without all exhibits to the extent requested by such Person (including those previously furnished or documents incorporated by reference) promptly after the filing of such documents with the Commission.reference therein or exhibits thereto, unless requested);
(gix) Promptly upon request, deliver to each selling Holder and each of the Special Counselunderwriter(s), if any, without charge, as many copies of the Prospectus or Prospectuses (including each form of preliminary prospectus) and each any amendment or supplement thereto as such Persons reasonably may reasonably request; provided, that if no Shelf Registration Statement is effective or no Prospectus is usable, the Company shall deliver to each selling Holder a notice to that effect in response to such request; each of the Company and the Company Guarantors hereby consents to the use (in accordance with law) of such the Prospectus and each any amendment or supplement thereto by each of the selling Holders and each of the underwriter(s), if any, in connection with the offering and the sale of the Registrable Securities covered by such the Prospectus and or any amendment or supplement thereto.;
(hx) Prior upon the reasonable request of such Holder, enter into such agreements (including an underwriting agreement containing customary terms), and make such representations and warranties, and take all such other actions in connection therewith in order to expedite or facilitate the disposition of the Registrable Securities pursuant to a Shelf Registration Statement contemplated by this Agreement, all to such extent as may be customarily and reasonably requested by any Holder of Registrable Securities or underwriter in connection with any sale or resale pursuant to a Shelf Registration Statement contemplated by this Agreement; and whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration, the Company shall:
(A) upon the request of any Holder, furnish to each underwriter, if any, in such substance and scope as they may reasonably request and as are customarily made by issuers to underwriters in primary underwritten offerings, upon the date of the effectiveness of the Shelf Registration Statement:
(1) an opinion and 10b-5 letter in customary form of counsel for the Company and the Guarantors, covering the matters customarily covered in opinions and 10b-5 letters requested in similar underwritten offerings and such other matters as such parties may reasonably request; and
(2) use commercially reasonable efforts to obtain a customary comfort letter, dated the date of effectiveness of the Shelf Registration Statement, from the Company’s independent accountants, in the customary form and covering matters of the type customarily requested to be covered in comfort letters by underwriters in connection with primary underwritten offerings;
(B) deliver such other documents and certificates as may be reasonably requested by such parties to evidence compliance with clause (A) above and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company or any of the Guarantors;
(xi) prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Holders, the underwriter(s), if any, and the Special Counsel their respective counsel in connection with the registration or and qualification (or exemption from such registration or qualification) of such the Registrable Securities for offer and sale under the state securities or Blue Sky blue sky laws of such jurisdictions within as the United States as any Holder requests in writingselling Holders or underwriter(s), to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period if any, may request and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a the Shelf Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.;
(ixii) Cooperate with use its commercially reasonable efforts to cause the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities covered by the Shelf Registration Statement to be sold pursuant registered with or approved by such other governmental agencies or authorities as may be necessary to a Registration Statementenable the seller or sellers thereof or the underwriter(s), which certificates shall be freeif any, to consummate the extent permitted by applicable law and the Purchase Agreement, disposition of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.;
(jxiii) Upon the occurrence of if any fact or event contemplated by Section 3(c)(C)(iii3(a)(iii)(D) hereof shall exist or (iv), as promptly as possiblehave occurred, prepare a supplement or amendment, including a post-effective amendment, amendment to the Shelf Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and reference or file any other required document so that, as thereafter delivereddelivered to the purchasers of Registrable Securities, neither the Registration Statement nor such Prospectus will not contain an untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary in order to make the statements therein, therein not misleading;
(xiv) cooperate and assist in any filings required to be made with FINRA and in the light performance of any due diligence investigation by any underwriter (including any “qualified independent underwriter”) that is required to be retained in accordance with the circumstances under which they were made, not misleading.rules and regulations of FINRA; and
(kxv) Cause all Registrable Securities relating otherwise use commercially reasonable efforts to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects comply with all applicable rules and regulations of the Commission Commission, and make generally available to its security holders holders, as soon as practicable, a consolidated earnings statements satisfying statement meeting the provisions requirements of Section 11(a) of Rule 158 under the Securities Act and Rule 158 (which need not later than 45 days after be audited) for the end of any 3twelve-month period (or 90 days after the end of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Shelf Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
Appears in 1 contract
Samples: Registration Rights Agreement (Horizon Lines, Inc.)
Registration Procedures. In connection with the Company’s registration obligations hereunderof the Company with respect to any Registration Statement pursuant to Sections 2.1 and 2.2 hereof, the Company shall:
(a) Prepare and file with the Commission SEC as soon as practicable each such Registration Statement (but in any event on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewithdate of filing thereof required under this Agreement) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the each such Registration Statement to become effective and remain effective as provided herein; provided, however, that not less than three (3) Business Days prior to the before filing of the any such Registration Statement or any related Prospectus or any amendment amendments or supplement theretosupplements thereto (including documents that would be incorporated or deemed to be incorporated therein by reference, including such documents filed under the Exchange Act that would be incorporated therein by reference), the Company shall (i) furnish afford promptly to the Special CounselHolders of the Registerable Securities covered by such Registration Statement, their counsel and the managing underwriter or underwriters, if any, an opportunity to review copies of all such documents proposed to be filed, which documents (other than those incorporated by reference) will be subject filed a reasonable time prior to the review of such Special Counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holders, to conduct a reasonable investigation within the meaning of the Securities Actproposed filing thereof. The Company shall not file the any Registration Statement or any such Prospectus or any amendments or supplements thereto to which if the Holders of a majority of the Registrable Registerable Securities covered by such Registration Statement, their counsel, or the Special Counsel managing underwriter or underwriters, if any, shall reasonably object in writing within three (3) Business Days after their receipt thereofwriting, unless counsel failure to file any such amendment or supplement would involve a violation of the Company determines in writing that such objection is without meritSecurities Act or other applicable law.
(ib) Prepare and file with the Commission SEC such amendments, including amendments and post-effective amendments, amendments to the such Registration Statement as may be necessary to keep the such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all Registrable Securitiestime periods prescribed hereby; (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 (or any similar provisions provision then in force) promulgated under the Securities Act; (iii) respond as promptly as possible, and in no event later than 10 Business Days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as possible provide the Holders true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act, the Exchange Act and the Exchange Act rules and regulations of the SEC promulgated thereunder applicable to it with respect to the disposition of all Registrable Securities securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders of Registrable Securities to be sold Registerable Securities, their counsel and the Special Counsel as managing underwriter or underwriters, if any, promptly as possible (Abut in any event within two (2) Business Days), and confirm such notice in writing, (i) when a Prospectus or any Prospectus prospectus supplement or post-effective amendment to the Registration Statement is proposed to be filed (but in no event in the case of this subparagraph (A)has been filed, less than three (3) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on such Registration Statement; and (C) and, with respect to the a Registration Statement or any post-effective amendment, when the same has become effective (which including in such notice shall be delivered to the Purchasers and Special Counsel on the same day as a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such effectiveness), and after the effectiveness thereof: (i) of any request by the Commission or any other Federal or state governmental authority for amendments or supplements to the Registration Statement or Prospectus or for additional information; post-effective amendment including financial statements and schedules and exhibits), (ii) of the issuance by the Commission SEC of any stop order suspending the effectiveness of the such Registration Statement covering or of any order preventing or all suspending the use of the Registrable Securities any Prospectus or the initiation or threatening of any Proceedings proceedings for that purpose; , (iii) if at any time when a prospectus is required by the Securities Act to be delivered in connection with sales of the Registerable Securities the representations and warranties of the Company contained in any agreement (including any underwriting agreement) contemplated by Section 3(m) below cease to be true and correct in any material respect, (iv) of the receipt by the Company of any notification with respect to (A) 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 (iv) if the financial statements included in the Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to the Registration Statement, Prospectus or other documents so that, in the case of the Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to any remedies to which the Holders may be entitled under this Agreement, if any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the event.
(d) Use its best efforts to avoid the issuance of, or, if issued, use best efforts to obtain the withdrawal of, (i) any order suspending the effectiveness of the Registration Statement Registerable Securities covered thereby for offer or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at jurisdiction or (B) the earliest practicable moment.
(e) If requested by initiation of any Holder of Registrable Securitiesproceeding for such purpose, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder and the Special Counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(g) Promptly deliver to each Holder and the Special Counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders and the Special 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 laws of such jurisdictions within the United States as any Holder requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, that the Company 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 that would subject it to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by Section 3(c)(C)(iii) or (iv), as promptly as possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(l) Comply in all material respects with all applicable rules and regulations of the Commission and make generally available to its security holders earnings statements satisfying the provisions of Section 11(av) of the Securities Act and Rule 158 not later than 45 days after the end happening of any 3-month period (or 90 days after event, the end existence of any 12-month period if such period is a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the Registration Statement, which statement shall conform to the requirements of Rule 158.
(m) Request each selling Holder to furnish to the Company condition or information regarding such Holder and the distribution of such Registrable Securities as is required by law or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder 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 such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time becoming known that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statement.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).requires the
Appears in 1 contract
Registration Procedures. In connection with the Company’s 's registration obligations hereunder, the Company shall:
(a) Prepare and file with the Commission on or prior to the Filing Deadline, a Registration Statement on Form S-3 (or if such form is not available to the Company on another form appropriate for such registration in accordance herewith) (which shall include a Plan of Distribution substantially in the form of Exhibit A attached hereto), and cause the Registration Statement to become effective and remain effective as provided herein; provided, however, that not Not less than three (3) Business Trading Days prior to the filing of the a Registration Statement or any related Prospectus or any amendment or supplement theretothereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to the Special Counsel, Purchasers and their counsel copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Special CounselPurchasers and their counsel, and (ii) at the request of any Holder cause its officers and directors, counsel and independent certified public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of counsel to such Holdersrespective counsel, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file the a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of Purchasers holding a majority of the Registrable Securities or the Special Counsel shall reasonably object in writing within three (3) Business Days after their receipt thereof, unless counsel to the Company determines in writing that such objection is without meritobject.
(i) Prepare and file with the Commission such amendments, including post-effective amendments, to the each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep the Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and to the extent any Registrable Securities are not included in such Registration Statement for reasons other than the failure of the Holder to comply with Section 3(m) hereof, shall prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement, and as so supplemented or amended to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act424; and (iii) respond as promptly as reasonably possible, and in no any event later than 10 Business Dayswithin ten days, to any comments received from the Commission with respect to the Registration Statement or any amendment thereto and as promptly as reasonably possible provide the Holders Purchasers true and complete copies of all correspondence from and to the Commission relating to the Registration Statement; and (iv) comply in all material respects with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by the Registration Statement during the applicable period in accordance with the intended methods of disposition by the Holders thereof set forth in the Registration Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Holders Purchasers of Registrable Securities to be sold and the Special Counsel their counsel as promptly as possible reasonably possible, and (Aif requested by any such Person) when a Prospectus or confirm such notice in writing no later than one Trading Day following such request, of any Prospectus supplement or post-effective amendment to of the Registration Statement is proposed to be filed following events: (but in no event in the case of this subparagraph (A), less than three (3i) Business Days prior to date of such filing); (B) when the Commission notifies the Company whether there will be a “"review” " of such any Registration Statement and whenever Statement; (ii) the Commission comments in writing on such Registration Statement; and (C) with respect to the any Registration Statement or any post-effective amendment, when (in which case the same has become effective Company shall deliver to each Purchaser a copy of such comments and of all written responses thereto); (which notice shall be delivered to the Purchasers and Special Counsel on the same day as such effectiveness), and after the effectiveness thereof: (iiii) of any request by the Commission or any other Federal or state governmental authority for amendments requests any amendment or supplements supplement to the any Registration Statement or Prospectus or for requests additional informationinformation related thereto; (iiiv) of the issuance by the Commission of issues any stop order suspending the effectiveness of the any Registration Statement covering any or all of the Registrable Securities or the initiation of initiates any Proceedings for that purpose; (iiiv) of the receipt by the Company receives notice 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 threat of any Proceeding for such purpose; and (ivvi) if the financial statements included in the any Registration Statement become ineligible for inclusion therein or of the occurrence of any event that makes any statement made in the any Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference is untrue in any material respect or that requires any revisions revision to the a Registration Statement, Prospectus or other documents document is required so that, in the case of the Registration Statement or the Prospectus, as the case may be, that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Without limitation to ; or (vii) any remedies to which the Holders may be entitled under this Agreement, if Registration Statement or any of the events described in clauses (i) through (iv) of Section 3(c)(C) occurs, the Company shall use its best efforts to respond to and correct the eventpost-effective amendment is declared effective.
(d) Use its best efforts to avoid the issuance of, of or, if issued, use best efforts to obtain the withdrawal of, of (i) any order suspending the effectiveness of the any Registration Statement or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
(e) If requested by any Holder of Registrable Securities, (i) promptly incorporate in a Prospectus supplement or post-effective amendment to the Registration Statement such information as the Company reasonably agrees should 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 to be incorporated in such Prospectus supplement or post-effective amendment; provided, however, that the Company shall not be required to take any action pursuant to this Section 3(e) that would, in the written opinion of counsel for the Company (addressed to the Special Counsel), violate applicable law.
(f) Furnish to each Holder Purchaser and the Special Counselits counsel, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission.
(gf) Promptly deliver to each Holder Purchaser and the Special Counselits counsel, without charge, as many copies of the Prospectus or Prospectuses (including each form of prospectus) and each amendment or supplement thereto as such Persons may reasonably request; and the . The Company hereby consents to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders Purchasers in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto.
(g) (i) In the time and manner required by each Trading Market, prepare and file with such Trading Market an additional shares listing application covering all of the Registrable Securities; (ii) take all steps necessary to cause such Registrable Securities to be approved for listing on each Trading Market as soon as possible thereafter; (iii) provide to the Purchasers evidence of such listing; and (iv) use its best efforts to maintain the listing of such Registrable Securities on each such Trading Market or another Eligible Market.
(h) Prior to any public offering of Registrable Securities, use its best efforts to register or qualify or cooperate with the selling Holders Purchasers and the Special Counsel their 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 laws of such jurisdictions within the United States as any Holder Purchaser requests in writing, to keep each such registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things necessary or advisable to enable the disposition in such jurisdictions of the Registrable Securities covered by a Registration Statement; provided, however, 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 where, but for the requirements of this clause (h), it is would not then be obligated to be so qualified or to take any action that would subject it consent to general service of process in any jurisdiction where it is not then so subject or subject the Company to any material tax in any such jurisdiction where it is not then so subjectjurisdiction.
(i) Cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold pursuant to a Registration Statement, which certificates shall be free, to the extent permitted by applicable law and the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any Holder may request at least two (2) Business Days prior to any sale of Registrable Securities. In connection therewith, the Company shall promptly after the effectiveness of the Registration Statement (but no later than two days thereafter) cause an opinion of counsel to be delivered to and maintained with its 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 Registrable Securities without legend upon sale by the Holder of such shares of Registrable Securities under the Registration Statement.
(j) Upon the occurrence of any event contemplated by described in Section 3(c)(C)(iii) or (iv6.2(c)(vi), as promptly as reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to the Registration Statement or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, neither the Registration Statement nor such Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(k) Cause all Registrable Securities relating to such Registration Statement to be listed on the New York Stock Exchange, the American Stock Exchange or the Nasdaq Stock Market.
(lj) Comply in all material respects with all applicable rules and regulations of the Commission Commission.
(k) Cooperate with the Purchasers to facilitate the timely preparation and make generally available delivery of certificates representing Registrable Securities to its security holders earnings statements satisfying the provisions of Section 11(a) of the Securities Act and Rule 158 not later than 45 days after the end of any 3-month period (or 90 days after the end of any 12-month period if such period is be delivered to a fiscal year) commencing on the first day of the first fiscal quarter of the Company after the effective date of the transferee pursuant to a Registration Statement, which statement certificates shall conform be free, to the requirements extent permitted by the Purchase Agreement, of Rule 158all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Purchasers may request.
(ml) Request each selling Holder to furnish to Cooperate with any due diligence investigation undertaken by the Purchasers in connection with the sale of Registrable Securities, including without limitation by making available any documents and information; provided that the Company will not deliver or make available to any Purchaser material, nonpublic information regarding unless such Holder Purchaser specifically requests in advance to receive material, nonpublic information and such Purchaser agrees to maintain the distribution confidentiality of such Registrable Securities as is required by law information and agrees not to sell or the Commission to be disclosed in the Registration Statement, and the Company may exclude from such registration the Registrable Securities of any such Holder who fails (i) to furnish such information or (ii) to agree to furnish, upon request, such additional information regarding such Holder as may later be required by law to be disclosed, in each case, within a reasonable time prior to the filing of each Registration Statement, supplemented Prospectus and/or amended Registration Statement. If the Registration Statement refers to any Holder by name or otherwise as the holder of transfer any securities of the Company, then such Holder shall have the right to require (if such reference to such Holder by name or otherwise is not required by the Securities Act or any similar federal statute then Company except in force) the deletion of the reference to such Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to the time that such reference ceases to be required. Each Holder agrees by its acquisition of such Registrable Securities that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(i), 3(c)(ii), 3(c)(iii), 3(c)(iv) or 3(n), such Holder will forthwith discontinue disposition of such Registrable Securities under the Registration Statement until such Holder’s receipt of the copies of the supplemented Prospectus and/or amended Registration Statement contemplated by Section 3(j), or until it is advised in writing (the “Advice”) by the Company that the use of the compliance with applicable Prospectus may be resumed, and, in either case, has received copies of any additional or supplemental filings that are incorporated or deemed to be incorporated by reference in such Prospectus or Registration Statementlaw.
(n) If (i) there is material non-public information regarding the Company which the Company’s Board of Directors (the “Board”) reasonably determines not to be in the Company’s best interest to disclose and which the Company is not otherwise required to disclose, or (ii) there is a significant business opportunity (including, but not limited to, the acquisition or disposition of assets (other than in the ordinary course of business) or any merger, consolidation, tender offer or other similar transaction) available to the Company which the Board reasonably determines not to be in the Company’s best interest to disclose and which the Company would be required to disclose under the Registration Statement, then the Company may postpone or suspend filing or effectiveness of a registration statement for a period not to exceed 30 consecutive days, provided that the Company may not postpone or suspend its obligation under this Section 3(n) for more than 60 days in the aggregate during any 12 month period (each, a “Blackout Period”).
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